Bashour v Australia & New Zealand Banking Group Ltd (Human Rights) [2024] VCAT 1197

Equal Opportunity Act 2010 (Vic)

First claim - request for fitness for work certificate

Section 18 Area of prohibited discrimination

First alleged failure - working from home adjustment

Second alleged failure - postponement of the medical assessment

Third alleged failure - postponement of response to disciplinary letter

Fourth alleged failure - reduction in workplace conflict

Section 20 Area of prohibited discrimination

First claim - requirement for employees of applicant's seniority to work in the office at least 1 to 2 day(s) per week

Second claim - requirement to produce further evidence of disability in circumstances where an employee had already provided sufficient medical evidence

Third claim - requirement to receive and respond to correspondence during sick leave

Fourth claim - requirement to respond to disciplinary process during sick leave

Fifth claim - 'Hostile Work Environment for Persons with Disabilities' Condition

Section 18 Area of prohibited discrimination

'Hostile Work Environment for Pregnant Women' Conditon

Section 18 Area of prohibited discrimination

1. This is an application by Ms Katherine Bashour under the Equal Opportunity Act 2010 (Vic) ('EO Act')[1] alleging discrimination and victimisation in the workplace by the Australia and New Zealand Banking Group Limited ('ANZ') and Ms Susie Babani, Ms Jennifer Evans and Mr Philip Chronican ('the respondents').
2. Ms Bashour's claim against ANZ and the respondents is based on five grounds: direct disability discrimination under section 8, indirect disability discrimination and indirect pregnancy discrimination under section 9, a failure to make reasonable adjustments under section 20 and victimisation under section 103. The relief sought for each of these claims of discrimination relies on section 18(b) and (d), namely that Ms Bashour has been dismissed or otherwise terminated in her employment and/or subjected to any other detriment. Accessorial liability is claimed against the second, third and fourth respondents under section 105, and vicarious liability is claimed against ANZ under section 109 of the EO Act.
3. Ms Bashour's claimed attribute is disability under section 6(e), particularised as;
   • Between in or around April to August 2014, pelvic instability;
   • Between in or around late January to August 2014, ongoing migraines;
   • Between in or around July and early August 2014, a low blood count and anaemia;
   • From 2014, trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms;
   • From in or around July until in or around August 2014, pregnancy-related or induced light-headedness; and
   • From in or around 2014, recurrent severe tension-type and/or stress headaches and/or severe ongoing headaches with migraine features.
4. In her indirect pregnancy discrimination claim, Ms Bashour claims the attribute of pregnancy under section 6(l) of the EO Act with respect to ANZ's 'Hostile Work Environment for Pregnant Women Condition'.
5. In her direct discrimination claim, Ms Bashour also claims as an attribute 'a purported other disability that the Applicant did not have' under section 7(2)(d).
6. Ms Bashour commenced these proceedings under section 122 of the EO Act by application to the Tribunal dated 20 October 2014. Annexed to this application, was a narrative with the heading 'What Happened' detailing her employment and claims against the respondents. Harmers Workplace Lawyers commenced acting for Ms Bashour on 1 April 2015.[2]
7. By orders of the Tribunal, points of claim were filed to clarify the way in which Ms Bashour put her case, and the case ANZ had to meet.[3] The final iteration of the claim is Ms Bashour's Further Amended Points of Claim ('FAPOC)'. The final defence filed by ANZ and the respondents is the Further Amended Defence ('FAD').
8. In my consideration of the claim, I take into account the remedial and beneficial nature of the EO Act, and that the Tribunal is not a court of pleadings. Although not bound by the rules of evidence, the Tribunal must comply with the rules of natural justice.
9. In this case, both parties are legally represented and have engaged in a substantial process of refining the claim and defence. Witness statements have been filed and a joint Tribunal Book prepared. The FAPOC and FAD relied upon for hearing includes pleadings of material facts giving rise to the legal claims. There was no statement of agreed facts or issues. Each party has filed opening and closing submissions and Ms Bashour has filed a closing in reply. Both parties have filed detailed chronologies. The Core Tribunal Book and Supplementary Tribunal Book comprise 21 volumes and more than 16,000 pages.[4] The applicant's opening, closing and reply submissions, including annexures, total 555 pages. Opening and closing submissions from the respondent total 254 pages. An additional 57 documents not in the Tribunal Book were tendered at the hearing.
10. Ms Bashour seeks relief comprising a public apology, damages including for psychiatric injury, damage to health, and damages to personal and professional reputation, damages for past and future economic loss and aggravated damages as well as declarations, training for ANZ, a donation by ANZ, interest, costs and interest on costs. Ms Bashour's claim of general damages exceeds $1,000,000[5] and her expert's summary for economic loss ranges between $14,933,118 and $42,851,829.[6]
11. Accordingly, this decision closely follows Ms Bashour's FAPOC as the basis on which each claim is put and pleaded. This judgment is structured according to the five parts of Ms Bashour's claim: direct disability discrimination, failure to make reasonable adjustments for a disability, indirect disability discrimination, indirect pregnancy discrimination and victimisation.
12. The evidence relevant to the key issues is referred to in my consideration of each part of the claim. I have relied on evidence that is logically or rationally probative of the facts to be determined.
13. Although this claim is brought under the EO Act, the Fair Work Act 2009 (Cth) ('Fair Work Act') also prohibits discrimination in the workplace. This is relevant to the extent there is an overlap between the State discrimination laws and the Federal industrial laws which means the cases referred to in this decision are from both fields. I note the Court of Appeal's caution in Austin Health v Tsikos[7] with respect to the reliance on industrial law cases in cases under the EO Act and I take into account that the objectives and operative provisions of the EO Act are different from those in the Fair Work Act.[8]

1. The litigation history of this claim at the Tribunal has been summarised in another judgment which I will not repeat.[9] Over ten years there have been a number of appeals to the Supreme Court (jurisdiction and discovery), directions hearings and the adjournment of five trial dates.
2. On 1 September 2023, I took carriage of this matter. A sixth trial date was listed on 12 February 2024 for 23 sitting days. The hearing ran for the scheduled 23 days and concluded on 15 March 2024. Evidence was heard from Ms Bashour[10] and 28 other witnesses. Expert medical witnesses were called by both parties regarding the independent medical examination[11] ('IME') and what that might reasonably entail. Ms Bashour called a number of medical witnesses with respect to her claim regarding psychiatric damage and damage to her health. These included her long-term treating psychologist, Dr Enza De Pino, and two independent expert witnesses, psychiatrists Professor Lorraine Dennerstein and Dr Jonathan Phillips.
3. Ms Bashour called Mr David May, remuneration expert, and Mr Chris Katehos, forensic accountant, as witnesses to calculate the size of her claim for economic loss. ANZ called three witnesses in response to Ms Bashour's witnesses including two witnesses from ANZ with respect to Ms Bashour's career trajectory.
4. The remuneration material and related medical material remain in abeyance to my considerations until it is established that ANZ and/or the respondents have acted unlawfully towards Ms Bashour.
5. At the hearing, witnesses adopted their statements as evidence in chief.

EQUAL OPPORTUNITY ACT 2010 (VIC)

1. Section 3 provides the objectives of the EO Act are:

(a) to eliminate discrimination, sexual harassment and victimisation, to the greatest possible extent;

(b) to further promote and protect the right to equality set out in the Charter of Human Rights and Responsibilities;

(c) to encourage the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation;

(d) to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that -

(i) discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;

(ii) equal application of a rule to different groups can have unequal results or outcomes;

(iii) the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures

...

1. Section 122 of the EO Act provides a person may make an application to the Tribunal in respect of an alleged contravention of Part 4, 6 or 7 of the Act.
2. This claim is brought under Part 4, Division 1 which deals with discrimination in employment. It is also brought under Part 7 which prohibits other conduct such as victimisation and covers authorising or assisting discrimination (referred to in the FAPOC as Accessorial Liability) and vicarious liability for discrimination.
3. Section 125 provides what is open to the Tribunal to decide '...after hearing the evidence and representations that the parties to an application desire to adduce or make'.
4. In addition to finding a person has contravened a provision of Part 4, 6 or 7, section 125(a) provides the Tribunal may make any one or more of the following orders:

(i) an order that the person refrain from committing any further contravention of this Act;

(ii) an order that the person pay to the applicant, within a specified period, an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention;

(iii) an order that the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention.

1. The relevant sections of the EO Act as it applies to each part of this claim under Parts 1, 2, 4 and 7 are considered below.

1. The burden of proof rests with Ms Bashour. This means she must prove on the evidence the alleged discrimination and victimisation occurred because of her attributes.
2. The standard of proof is on the balance of probabilities. I note that where there are serious allegations of misconduct, the Tribunal should also take into account the common law principles of being comfortably satisfied as outlined in Briginshaw v Briginshaw.[12]
3. In the part of the claim relating to indirect discrimination, if I find ANZ and the respondents imposed a requirement, condition or practice which has the effect of disadvantaging persons with an attribute, then ANZ and the respondents bear the burden of proving it was a reasonable requirement, condition or practice.

1. In 2009 Ms Bashour, a lawyer, was employed by ANZ in its Australian Division Compliance and Regulatory Change and Policy ('ADC') team in the position of Compliance Manager at Group 4.1 level. From the commencement of her employment, she worked from home one day a week.
2. In November 2010 she was seconded, as a Group 3, to the position of Program Manager of the Storm Resolution Scheme, which was a customer remediation program following the collapse of Storm Financial.[13]
3. In September 2012, Ms Bashour commenced maternity leave and had her first child. In April 2013 she returned to work in her original Group 4.1 position with the ADC team and commenced working from home two days a week.
4. In August 2013, a Senior Manager, Group 3 level, vacancy arose in the ADC team. Ms Bashour applied for the position as did two other internal candidates, Liana Edelman and Daniel McCutcheon. After a process involving first and second interviews, in September 2013, Ms Edelman was announced as the successful applicant.
5. After learning her application was unsuccessful, on 26 September 2013 Ms Bashour met with her skip manager, Mark Shaw, to discuss why she had not been the successful applicant and her working from home arrangements.
6. At the conclusion of that meeting Ms Bashour's position was that Mr Shaw had agreed she could work from home four days a week and her contract of employment would be varied to reflect that, to commence 7 October 2013, and Ms Bashour was to advise the week prior which day she would be in the office the following week. Mr Shaw's position was that this was never the agreement and that he had agreed to some flexibility as to which two days she worked from home. From 7 October 2013 Ms Bashour started working from home four days a week, sending an email to Mr Shaw prior to the following week advising which day she would attend the workplace.
7. On 30 October 2013, Ms Edelman commenced in the Senior Manager role and became Ms Bashour's immediate line manager.
8. On 11 November 2013, Ms Bashour met with Mr Shaw and raised complaints about the allocation of work and Ms Edelman's management style. Mr Shaw states at this meeting he clarified with Ms Bashour that it was not the arrangement that she could work from home four days per week. There is a dispute about what was said at the 11 November 2013 meeting. On 18 November 2013 Ms Bashour sent Mr Shaw an email nominating her next day in the office the following week as Tuesday. On 18 November 2013 Mr Shaw emailed a reply to the effect, as discussed last week, the arrangement is not to work from home four days a week on a permanent basis and requesting she attend the office at least two days a week.
9. On 22 November 2013, Mr Shaw offered Ms Bashour a five-day per fortnight working from home arrangement, requiring her to be at the workplace at least two days a week.
10. Ms Bashour maintained her position that the agreement on 26 September 2013 constituted a variation to her employment contract allowing her to work from home four days a week. This position is in dispute, denied by Mr Shaw. Ms Bashour continued to work from home four days a week.
11. On 29 November 2013, Ms Bashour made a telephone complaint to Human Resources regarding the dispute, followed by written complaint on 1 December 2013.
12. On 1 December 2013, Ms Bashour emailed Mr Shaw asserting her right to work from home four days per week and advised that she would continue to do so.
13. On 2 December 2013, Mr Shaw contacted Human Resources for their assistance regarding the dispute.
14. Following a period of annual leave from 27 December 2013 to 31 December 2013, from 1 January 2014 until 3 March 2014, Ms Bashour took sick leave. This was interspersed with a return to the workplace on 20 January 2014 when she went home sick after half a day, and then worked from home on 21 and 22 January 2014.
15. On 2 January 2014, Daniel Zeman, the Human Resources officer who had been assigned to consider Ms Bashour's complaint, made findings that Mr Shaw had not agreed to a four day per week working from home arrangement.
16. On 15 January 2014, Ms Bahour made a General Protections application to the Fair Work Commission.
17. Ms Bashour returned to work on 3 March 2014 and Ms Edelman made three requests for her to provide a fitness for work certificate. Ms Bashour claims the requests to provide a fitness for work certificate constituted unfavourable treatment and ANZ directly discriminated against her under section 8 of the EO Act on the basis of her disability, namely ongoing migraines and a purported other disability she did not have. Ms Bashour also claims she was victimised in contravention of section 103 by having to provide further medical evidence in circumstances where she had already provided sufficient medical evidence.
18. When Ms Bashour returned to work and attended the workplace, on her doctor's advice she was not able to sit with her team. She also stated she was unable to meet with Ms Edelman face to face. On 5 March 2014, Ms Bashour made a complaint to then CEO of ANZ Australia, Mr Chronican, and Global Chief Human Resources Officer, Ms Babani.
19. Between 20 January and March 2014 Ms Edelman sought to engage Ms Bashour in a flexible working arrangement assessment to determine what could be accommodated given Ms Bashour's job specifications. Ms Bashour maintained the four days working from home arrangement was a variation to her contract of employment and declined to participate. The flexible work assessment concluded Ms Bashour's work specifications required her to attend the workplace at least two days a week and five days per fortnight.
20. On 25 March 2014, Ms Edelman asked Ms Bashour to comply with the terms of the assessment commencing in four weeks' time. Ms Bashour continued to work from home four days a week.
21. Ms Bashour claims ANZ imposed a requirement that all employees of her seniority work in the office one or two days a week and that ANZ contravened section 9 of the EO Act by indirectly discriminating against her on the basis of her six pleaded disabilities.
22. On 14 April 2014, Ms Edelman became aware Ms Bashour was pregnant.
23. On 18 May 2014, Ms Bashour advised Ms Edelman and Mr Shaw she would be working from home five days a week as she had pelvic instability and supplied a letter from her obstetrician-gynaecologist Dr Chew dated 15 May 2014.
24. On 21 May 2014, Ms Edelman asked for more information and requested that Dr Chew address six questions related to; the effects of the condition and/or any treatments or medications on her ability to perform the role, how the assessment was made that travel to the Docklands exacerbated the condition when Ms Bashour has been on leave, the prognosis of the condition, how long the restriction that Ms Bashour not travel to Docklands will need to be in place, any support or reasonable adjustments he can identify that ANZ should take to ensure Ms Bashour can safely perform her role, and whether Ms Bashour needs access to special unpaid maternity leave or transfer to a safe job under the ANZ Parental Leave Policy.
25. On 30 May 2014, Ms Bashour responded to Ms Edelman answering the six questions herself.
26. On 3 June 2014, Ms Edelman made a further request that Dr Chew respond, and added some adjustments proposed by ANZ to accommodate Ms Bashour.
27. On 19 June 2014, Ms Bashour made a complaint against Ms Edelman to Ms Babani and Ms Evans, Chief Risk Officer. This was allocated to Mr Zeman, as the ANZ Human Resources representative. He determined that Ms Edelman's request for further information was reasonable and consistent with ANZ's policy and procedures. On 23 June 2014, he directed Ms Bashour to provide the required information by 1 July 2014, and that in the event of a failure to do so ANZ would direct her to attend an IME.
28. On 30 June 2014, Ms Bashour provided a further letter from Dr Chew.
29. On 4 July and 10 July 2014 Mr Zeman directed Ms Bashour to attend an IME on 15 July 2014.
30. Ms Bashour claims that by directing her to attend the IME in circumstances where adequate medical evidence had been provided, ANZ directly discriminated against her on the basis of her disability, namely pelvic instability. Further Ms Bashour claims she was victimised by ANZ directing her to attend the IME.
31. Further, Ms Bashour claims by requiring medical evidence of disability including by way of the IME, in circumstances where she had already provided sufficient medical evidence, ANZ indirectly discriminated against her on the basis of her six pleaded disabilities.
32. Ms Bashour did not attend the IME on 15 July 2014.
33. On 16 July 2014, Mr Zeman advised Ms Bashour by letter that ANZ was commencing disciplinary proceedings.
34. On 24 July 2014 this process was deferred by Mr Zeman following receipt of Dr Crimmins letter dated 23 July 2013 stating correspondence with Ms Bashour should cease. The disciplinary process requiring a response from Ms Bashour was re-activated by Mr Zeman on 4 August 2014 after he became aware of her email to ANZ's lawyers, Maddocks, regarding discovery issues in her Federal Court proceedings.
35. Ms Bashour claims by failing to allow her to work from home for the remainder of her pregnancy, ANZ failed to make reasonable adjustments and contravened section 20. Further, Ms Bashour claims she was victimised by ANZ refusing to allow her to work from home.
36. Ms Bashour claims that because of her low blood count and anaemia, trauma induced major depressive disorder, and pregnancy induced light headedness she was not able to attend the IME and could not respond to the disciplinary letter. She claims that by failing to postpone both the date of the IME and the deadline for responding to the disciplinary letter, and by failing to reduce the workplace conflict, ANZ failed to make a reasonable adjustments and contravened section 20.
37. Further, Ms Bashour claims by imposing a condition employees receive and respond to correspondence during sick leave and provide responses as part of a disciplinary process during sick leave ANZ contravened section 9 by indirectly discriminating against her on the basis of her six pleaded disabilities. Ms Bashour also claims she was victimised by ANZ corresponding with her whilst on sick leave, including by requiring that she participate in the disciplinary process whilst on sick leave in contravention of her medical advice.
38. Ms Bashour claims that by imposing a condition employees work in a hostile environment for persons with disabilities ANZ contravened section 9 by indirectly discriminating against her on the basis of disability.
39. Ms Bashour also claims that by imposing a condition employees work in a hostile environment for pregnant women ANZ contravened section 9 by indirectly discriminating against her on the basis of pregnancy.
40. On 5 August 2014, Ms Bashour sought an urgent injunction in the Federal Circuit Court to prevent ANZ from taking further disciplinary action against her and terminating her employment. During the course of the hearing on 7 August 2014, Ms Bashour stated to Judge Riley she was required to attend an IME which included 'an internal pelvic examination'. On 8 August 2014, this was reported in The Age newspaper and online.
41. On 8 August 2014, the ANZ issued a media release which included information that Ms Bashour was not required to undergo an internal examination. The Age online article was updated to include ANZ's comments in the media release.
42. Ms Bashour claims ANZ victimised her through the media release, subsequent related media statements and social media posts. Further, Ms Bashour claims Ms Babani victimised her by actively encouraging the media release and by sending an email to Elizabeth Broderick, who was then the Federal Sex Discrimination Commissioner, attaching the media release.
43. Ms Bashour also claims she was victimised by ANZ as a result of conduct in the court proceedings, namely the proceedings in the Federal Circuit Court being transferred to the Federal Court, the strike out application at the Tribunal, 'the derailment of the Federal Court proceedings', and the attempt to set an unmanageable and unreasonable timetable in the Federal Court. Ms Bashour claimed Ms Babani and Ms Evans victimised her as a result of the strike out order and failing to intervene in various other actions alleged above.
44. Ms Bashour claims by directly discriminating against her, in each instance of failing to make reasonable adjustments, by indirectly discriminating against her on the basis of disability and pregnancy and by victimising her, ANZ acted in breach of section 18 and dismissed or otherwise terminated her employment and subjected her to a detriment.
45. Ms Bashour also claims Ms Babani and Ms Evans contravened section 105 and are accessorily liable for victimisation against her for authorising the contraventions in the various claims set out in her FAPOC paragraph [154], in addition to failing to intervene to prevent, stop or remedy such actions in circumstances where Ms Bashour made complaints to them from 5 March 2014 about the failure to make reasonable adjustments for a disability, indirect disability discrimination, direct disability discrimination and indirect pregnancy discrimination. Further, Ms Bashour claims Ms Babani contravened section 105 by encouraging, inducing, instructing authorising and assisting the media release and the email to Elizabeth Broderick. Further, Ms Bashour claims Mr Chronican, Ms Babani and/or Ms Evans contravened section 105 by directly and indirectly authorising discrimination in relation to the Hostile Work Environment for Pregnant Women Condition and/or Hostile Work Environment for Persons with Disabilities Condition by failing to intervene to prevent, stop or remedy the same where Ms Bashour made complaints to them about the underlying hostile work environment from 5 March 2014.
46. Ms Bashour also pleads under section 109, ANZ is vicariously liable for the acts of Ms Babani, Ms Edelman, Mr Zeman, Ms Turner, Ms Thomas and Mr Ries.[14]

1. Ms Bashour makes two claims of direct discrimination under section 8 of the EO Act.
2. Discrimination is not prohibited in all areas of life. Part 4 of the EO Act sets out those areas where it is prohibited.
3. Ms Bashour claims that this discrimination has occurred in the area of employment, that sections 18(b) and (d) have been contravened and the direct discrimination led to dismissing or otherwise terminating her employment, and/or she was subjected to any other detriment.

1. Section 4 of the EO Act provides that disability means:

(a) total or partial loss of a bodily function; or

(b) the presence in the body of organisms that may cause disease; or

(c) total or partial loss of a part of the body; or

(d) malfunction of a part of the body, including -

(i) a mental or psychological disease or disorder;

(ii) a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder; or

(e) malformation or disfigurement of a part of the body -

and includes a disability that may exist in the future (including because of a genetic predisposition to that disability) and, to avoid doubt, behaviour that is a symptom or manifestation of a disability;

(1) Discrimination means -

(a) direct or indirect discrimination on the basis of an attribute; or

(b) a contravention of section 17, 19, 20, 22, 32, 33, 40, 45, 54, 55 or 56.

(2) Discrimination on the basis of an attribute includes discrimination on the basis -

(a) that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;

(b) of a characteristic that a person with that attribute generally has;

(c) of a characteristic that is generally imputed to a person with that attribute;

(d) that a person is presumed to have that attribute or to have had it at any time.

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

In determining whether or not a person discriminates, the person's motive is irrelevant.

First claim - request for fitness for work certificate

1. During January and February 2014, Ms Bashour took sick leave which was supported by medical certificates.[15] Towards the end of February and in early March 2014, her line manager Ms Edelman made three requests by email for a certificate confirming that she was fit to return to work.
2. These three requests are the basis of Ms Bashour's first claim of direct discrimination.

1. At paragraph [146] of the FAPOC Ms Bashour claims:

Further or in the alternative, in acting as pleaded in paragraphs 47, 49, 50 and 51 by requesting the Applicant provide a fitness for work certificate, ANZ treated the applicant unfavourably because of her disability, namely, her ongoing migraines and/or and (sic) recurrent severe tension-type and/or stress headaches and/or severe ongoing headaches with migraine features, and/or because of a purported other disability that the Applicant did not have.[16]

1. Paragraphs [47], [49] and [50] refer to the requests made by Ms Edelman on 28 February 2014, 3 March 2014 and 20 March 2014 to Ms Bashour seeking a fitness for work certificate.
2. In the second request, Ms Edelman repeated her initial request on the basis she was advised by a Human Resources representative of this requirement. The particulars of paragraph [51] specify that the 'ANZ Sick Leave Policy' and the 'Incident Management Process' do not require a medical certificate confirming fitness to return to work, nor did conversations between Ms Bashour and ANZ People Assist on 3 and 24 March 2014 state it was required, nor is the requirement referred to in the letter dated 24 March 2014 to Ms Bashour from ANZ People Assist.

The Respondents deny the allegations in paragraph 146, and say further that the paragraph is incapable of being pleaded to, by reason of the failure of the Applicant to identify the so called 'purported other disability that the Applicant did not have'.[17]

1. Ms Bashour submitted the three requests to provide fitness for work certificates[18] were unfavourable conduct by ANZ and the actions placed an onerous burden on her which was imposed in an insensitive and punitive manner.[19]
2. Further:
   • The unfavourable treatment consisted of repeated directions after she had been absent from work with migraine headaches. The directions consisted of a direction on 28 February 2014 to provide a fitness for work certificate prior to returning to work on 3 March 2014, a repeated direction on 3 March 2014 and a further direction on 20 March 2014.[20]
   • ANZ pursued her for medical information beyond that which it genuinely needed and in a manner that unnecessarily harassed and threatened her;[21]
   • The request for fitness for work certificates immediately followed the commencement of her Federal Court proceedings;[22]
   • The repeated requests for fitness for work certificates were inconsistent with ANZ's sick leave policy and unnecessary given the reports of Professor Jacques Joubert;[23]
   • The sick leave policy proscribed that a fitness for work certificate may be required if an employee sought to resume work prior to the expiration of a medical certificate (not the case here) and otherwise did not require one be provided; [24] and
   • ANZ's repeated directions were 'clearly harassing and unfavourable' to her.[25]
3. In terms of causal connection, Ms Bashour submitted:
   • Disability as a protected attribute includes behaviour that is a symptom or manifestation of a disability, and the protected attribute need only be the substantial reason for the unfavourable conduct.[26]
   • The ongoing migraines and/or another disability which ANZ imputed to Ms Bashour which she did not have, was at least a substantial reason, if the not the only reason, for the requests for fitness for work certificates.[27]
   • The definition of discrimination in section 7 of the EO Act includes the provision in section 7(2)(d) that discrimination on the basis of an attribute includes discrimination on the basis that a person is presumed to have that attribute or to have had it at any time.[28]
   • Inferences establishing ANZ's causal conduct are clearly available from the evidence.[29]
   • For the purposes of direct discrimination, the knowledge requirement is relevant to establishing the necessary causal connection between the protected attribute and the unfavourable treatment.[30]
4. In response to ANZ's submissions that the request for fitness for work certificates were consistent with established principles that an employer may direct an employee to obtain a medical report or attend a medical assessment, Ms Bashour relied on Blackadder v Ramsey Butchering Services Pty Ltd[31] and Australian and International Pilots Association v Qantas Airways Ltd.[32] These cases provide that there needs to be a genuine indication of a need for the medical examination on reasonable terms. Further, she relied on _Wildman v IMCD Australia Limited[33]_to submit that it is insufficient for an employer to simply assert safety concerns as a justification for requiring medical information from employees, with it being necessary to consider the nature of the employee's job and personal circumstances, the practical utility of the medical information, and the asserted purpose to which it will be put.
5. Further, Ms Bashour submitted that ANZ had sufficient information to fulfill its health and safety duties, and its pursuit of further information was not necessary, ANZ was not authorised to take a punitive and insensitive approach and the unfavourable treatment was not justified by its health and safety obligations.[34]
6. Ms Bashour referred to Studart-Teles v The Department of Education and Training (State of Victoria)[35] where the Tribunal held the respondent's insistence on an independent medical report was part of its unfavourable treatment of Mr Studart-Teles because of his disability.[36]
7. Ms Bashour submitted the requests by Ms Edelman for fitness for work certificates were an attempt to block Ms Bashour returning to work, in circumstances where Ms Edelman presumed Ms Bashour would lose her job as a result of contesting Mr Shaw's version of the flexible work agreement on 26 September 2013.[37]

1. In opening submissions ANZ did not dispute Ms Bashour was directed to provide medical evidence she was fit for work. ANZ submits this did not constitute unfavourable treatment. The requests were made to determine whether she was fit to perform her duties and how ANZ could support her to perform them safely. They were reasonable, and consistent with the established principle that it is reasonable for an employer to give a direction to determine if an employee is fit for duty and to perform their duties safely.[38]
2. With respect to causation, the protected attribute must be the substantial reason for the unfavourable treatment. ANZ submits Ms Bashour must prove not only that she had the particular protected attribute, but also that ANZ knew of that attribute at the time of the treatment complained of. ANZ denies there is a causal connection, and each of ANZ's lay witnesses vehemently deny acting because of the disabilities and attributes Ms Bashour relies upon.[39]
3. Causation requires a consideration of the detail in the medical evidence and other information provided by Ms Bashour, and the nature of her responses to the bank's requests. ANZ submits an inference can be drawn that Ms Bashour was unwilling to co-operate and to provide information being sought on a reasonable basis in order to enable ANZ to make an informed decision about the ways she could be assisted to work safely.[40]
4. In opening submissions, ANZ submitted it did not know about Ms Bashour's headaches until 11 March 2014, namely from the meeting between Ms Bashour and Ms Turner on 11 March 2014 when Ms Bashour told Ms Turner she was pregnant and experiencing headaches and neck tension.[41] In closing submissions, ANZ submitted it was open to the Tribunal to find that ANZ first became aware of the applicant's headaches on 20 January 2014 because of the Incident Notification Form Ms Bashour lodged on this date.[42]
5. In closing submissions regarding causation, ANZ submitted Ms Bashour must demonstrate the requests to provide proof of fitness for work were made 'because of' the protected attribute and she must prove she had the alleged disability upon which her claim relies and that ANZ knew of the attribute at the time of the request.[43] ANZ submits none of the evidence from ANZ witnesses supports a finding that the requests were made because of the attribute.

1. The elements of direct discrimination in section 8 of the EO Act are:
   1. That a person has an attribute as defined in the Act;
   2. That the person was treated unfavourably; and
   3. That any unfavourable treatment was because of the attribute.
2. The Tribunal must determine, based on the evidence called at the hearing and tendered, whether the evidence supports a finding that the conduct is discriminatory. Any inference drawn from the surrounding factual matrix must be reasonably available on the evidence and not merely speculative.
3. A number of cases also refer to the EO Act as beneficial and remedial legislation. Senior Member Steele in Black v Owners Corporation OC1-POS539033E[44] confirmed this proposition, citing IW v City of Perth.[45] This means the legislation '...is to be given a "fair, large and liberal" interpretation rather than one which is "literal or technical"', though '...a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.'[46]
4. In Austin Health v Tsikos the Court of Appeal held, to establish the reason for unfavourable treatment, reliance on a comparator is not required under the EO Act (as opposed to the position under the 1995 Act).[47] Citing the explanatory memorandum to the Equal Opportunity Bill 2010 (Vic), the Court noted this was introduced '...to overcome the unnecessary technicalities associated with identifying an appropriate comparator when assessing whether direct discrimination has occurred.'[48]

1. The attribute must fall within the definition of attributes in section 6 of the EO Act.
2. The attribute does not have to be the sole reason for unfavourable treatment. Ms Bashour only needs to prove the attribute was a substantial reason for her unfavourable treatment.[49] Motive is irrelevant.[50]
3. With respect to her first direct discrimination claim, Ms Bashour claims two attributes. The first is 'ongoing migraines and/or and (sic) recurrent severe tension type and/or stress headaches and/or severe ongoing headaches with migraine features.' The second is 'a purported disability the applicant did not have.'
4. Section 7(2) provides:

Discrimination on the basis of an attribute includes discrimination on the basis -

...

(d) that a person is presumed to have that attribute or to have had it at any time.[51]

1. In her FAPOC Ms Bashour refers to a 'purported' disability and in her opening submissions Ms Bashour refers to section 7(2)(d), which refers to a 'presumed' attribute.
2. To enliven section 7(2)(d), Ms Bashour needs to identify and adequately describe the attribute she seeks to rely on and evidence to support the claim ANZ presumed she had the attribute.

1. 'Unfavourable treatment' is not defined in the EO Act. The Discrimination Act 1991 (ACT), section 8, also uses the expression 'unfavourable treatment.' In Re Prezzi and Discrimination Commissioner[52] the ACT Tribunal found '[a]ll that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with.'[53]
2. In Drummond v Telstra Corporation Limited,[54] Deputy President Macnamara, referring to section 8 under the previous EO Act, stated '...whether one uses the word detriment or refers to less favourable treatment what is necessary to be shown is something of substance rather than something which is merely trivial.'[55]
3. In Slattery v Manningham City Council,[56] Deputy President Nihill stated the concept of 'unfavourable' requires '...an analysis of the impact of treatment on the person complaining of it', although the analysis '...may be informed by consideration of the treatment afforded relevant to others.'[57]
4. In Kuyken v Chief Commissioner of Police[58] Garde J upheld the test for unfavourable treatment applied by the Tribunal that whilst analysis may be informed by a consideration of treatment afforded to relevant others, a comparator is not required (consistent with Slattery and Re Prezzi and Discrimination Commissioner ) and:

What was necessary was that the proposed treatment is 'not favourable, not propitious, disadvantageous and adverse'. In the case of the 31 August 2012 email, these requirements were met. The treatment afforded by that email was detrimental treatment, placing the plaintiff under a real disadvantage which was a matter of substance and not trivial.[59]

1. In that case the direct threat of disciplinary action in the email amounted to proposed unfavourable treatment by subjecting Mr Kuyken to a detriment.
2. In Tsikos v Austin Health[60] Richards J stated the question for the Tribunal was whether Austin Health's refusal or failure to negotiate with Ms Tsikos regarding a higher salary was unfavourable treatment of her. The Tribunal was required to determine whether Austin Health had treated Ms Tsikos unfavourably by reference to the whole of the evidence over the period between 2011 and 2018.
3. In VVR v Trustee for Ironfish Property Management Melbourne Unit Trust 73299113275[61] Senior Member Steele stated, '[i]n simple terms, the treatment was unfavourable, in that VVR suffered when she was addressed by her former male-gender name, in circumstances where she had been asked to be called by her current name.'[62]
4. The cases suggest a subjective approach to what constitutes unfavourable treatment, by '...analysis of the impact of treatment on the person complaining of it',[63] for example in finding that VVR 'suffered' when addressed by her former male-gender name. In Kuyken v Lay[64] Grainger M rejected that the new grooming standard which caused Mr Kuyken to suffer 'angst and anxiety' constituted unfavourable treatment but found an email with a direct threat of disciplinary action did. On review, Garde J in Kuyken v Chief Commissioner of Police refers to the email '...placing the plaintiff under a real disadvantage which was a matter of substance and not trivial', which suggests an objective aspect to the test.[65]
5. In the NSW case Amponsem v Anglican Schools Corporation[66] the Tribunal stated:

...subjective factors are very important in cases under the ADA. Frequently, the mere fact of being treated differently because of one's impairment (or their defined attribute) will constitute by itself unfavourable treatment. This does not mean that objective reality is not important. The person is not discriminated against simply because he or she perceives him or herself to be treated differently.[67]

1. In the VCAT discrimination case of Studart-Teles, Mr Studart-Teles suffered a spinal stroke and his return-to-work plan, signed by his GP in December 2019, was refused by the Education Department. His GP subsequently signed return to work plans on 19 February 2020, 14 April 2020 and 1 July 2020. In October 2020 the Education Department requested an IME.
2. In these circumstances, Senior Member Steele held:

...the respondent's insistence on an independent medical report (originating as it did so long after the applicant first sought to return to work) was part of its unfavourable treatment of the applicant based on his disability. His general practitioner continually certified he was fit to return to work on modified duties and the respondent did not apparently take that into account or give it any weight. Nor did the respondent say at the time why it considered the general practitioner's reports from February 2020 onwards were insufficient.[68]

1. The case law suggests whether treatment constitutes unfavourable treatment is a subjective test, with a rider that it be something of substance, not trivial.
2. This case is brought under equal opportunity legislation however, I have been referred to authorities in the industrial law context in submissions as to the standard test of the lawfulness of a command or direction by an employer to an employee.
3. Dixon J stated in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan;[69]

...the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.'[70]

1. It is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer.[71]
2. An employer is entitled to direct an employee to obtain a medical report or attend a medical assessment if that direction is reasonable.[72] The following case law suggests the test for whether the request for medical information is reasonable is objective.
3. In Cederman v Oleochem Project Management Limited,[73] a General Protections case under the Fair Work Act, Deputy President Beaumont stated '[o]n an objective level the medical certificate... did not constitute reasonable and sufficient evidence that the Applicant was fit for her substantive position...'.[74] DP Beaumont held that section 81 of the Fair Work Act provided a pregnant employee who has served 12 months continuous service is entitled to be transferred to an 'appropriate safe job' for a risk period, if the pregnant employee has provided evidence to their employer that would satisfy a reasonable person that they are fit for work. Up until February 2022, the medical certificates provided by Ms Cederman were insufficient to satisfy a reasonable person she was fit for work.[75]
4. In Swanson v Monash Health,[76] an adverse action case in the Federal Circuit Court, Jones J, citing duties cast on employers by sections 21 and 22 of the Occupational Health and Safety Act 2004 (Vic), stated:

It is also an established principle that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely.[77]

1. In Blackadder, an industrial law case in the Federal Court concerning termination of employment, Madgwick J, referring to the NSW occupational health and safety legislation, stated it is essential for compliance:

...that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties.

...

The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination.[78]

1. In the Federal Court discrimination case of Thompson v IGT (Australia) Pty Ltd[79] an employer requested an employee attend a psychiatric assessment to determine whether the employee was fit for work. Goldberg J held, in those particular circumstances, that the request the employee attend the psychiatric assessment in order for the employer to obtain medical information was not a detriment as:

...there are circumstances in which a requirement to provide medical information to one's employer, provided it is made on reasonable terms and is shown to be reasonably necessary, does not constitute a detriment in employment but is, as Madgwick J observed, a necessary part or an incident of the employment.[80]

1. Goldberg J further found that the requirement to attend a medical examination was not made because of the employee's disability, but rather to explain the continued absences from employment, ensure the employer's compliance with occupational health and safety obligations, and ascertain whether the employee was capable of performing the inherent requirements of his work.[81]

1. The attribute must have had a causal effect on the decision to commit the discriminatory act. Causation requires consideration of whether a substantial reason for the unfavourable treatment was the protected attribute. Whilst motive is irrelevant, knowledge is relevant to establishing the necessary causal connection between the protected attribute and the unfavourable treatment. The High Court in Purvis v New South Wales (Department of Education and Training)[82] held '...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?'[83]

1. I take into account the written and oral evidence of Ms Bashour and Ms Edelman together with the tendered documentary evidence, namely the relevant emails, medical certificates and letters.

1. Ms Bashour must establish she has an attribute. At paragraph [146] of her FAPOC, Ms Bashour relies on two disabilities: headaches and 'a purported other disability that the Applicant did not have.' In her submissions she references section 7(2)(d) which states discrimination on the basis of an attribute includes discrimination on the basis that a person is presumed to have that attribute or to have had it at any time.[84]

1. The EO Act identifies certain attributes. Ms Bashour claims her attribute is a disability referred to in section 6(e), namely her '...ongoing migraines and/or and (sic) recurrent severe tension-type and/or stress headaches and/or severe ongoing headaches with migraine features...'.[85]
2. ANZ accepted it is open to the Tribunal to find Ms Bashour suffered from 'headaches' from January 2014 and ANZ first became aware of the headaches on 20 January 2014 and by no later than 11 March 2014 when Ms Bashour told Ms Turner. ANZ submits at its highest the headaches possessed 'migraine features'.[86]
3. I accept Ms Bashour suffered from headaches and I accept ANZ's submissions it was aware from 20 January 2014 when Ms Bashour lodged the ANZ Incident Notification Form. On 11 March 2014, Ms Bashour told Ms Turner she was pregnant and experiencing headaches and neck tension. The first medical advice ANZ received about this appears to be 24 April 2014 when Professor Joubert refers to Ms Bashour's 'severe migraine episodes'.[87] In cross-examination he clarified the reference to 'migraine' as in fact being a 'mixed headache' which was stress related and had 'migraine like' features.[88] I accept this constitutes an attribute, as a disability under section 6(e).

1. ANZ disputes Ms Bashour's claimed attribute described as 'and/or because of a purported other disability that the Applicant did not have.'
2. Section 4 defines 'disability' to include behaviour that is a symptom or a manifestation or a disability.[89] Section 7(2) extends the definition of discrimination on the basis of an 'attribute' to cover (a) an attribute, whether or not he or she had it at the time of discrimination, (b) a characteristic that a person with that attribute generally has, (c) a characteristic generally imputed to a person with that attribute and (d) that a person is presumed to have that attribute or to have had it at any time.
3. Although section 7(2)(d) uses the word presumed, in her pleadings Ms Bashour uses the word purported. Further, in opening submissions in addition to presumed, she uses the word imputed[90] which is used in section 7(2)(c): 'of a characteristic that is generally imputed to a person with that attribute.'
4. In her opening submissions, with respect to causation, Ms Bashour appears to rely on section 7(2)(d):

...In this regard it is important to note that disability as a protected attribute includes behaviour that is a symptom or manifestation of a disability...

...

In relation to the repeated directions to provide fitness for work certificates, the circumstance of the Applicant's ongoing migraines and/or another disability, which the Respondent imputed to the Applicant but which the Applicant did not have, was at least a substantial reason, if not the only reason, that the First Respondent, through Ms Edelman, made requests to the Applicant that the Applicant provide fitness for work certificates before returning to work as described in paragraphs [47], [49] and [50] of the Applicant's Further Amended Points of Claim.

The definition of discrimination in section 7 of the EOA includes the provision in section 7(2)(d) that discrimination on the basis of an attribute includes discrimination on the basis that a person is presumed to have that attribute or to have had it at any time.[91]

1. In her closing submissions, at paragraph [184(a)] - [184(f)], Ms Bashour detailed the evidence of her distress, prefaced with the statement that 'The First Respondent was aware that the Applicant was experiencing a level of distress that put it on notice of a developing mental illness.' She further submitted:

It is not necessary for the First Respondent to have been informed of the eventual diagnosis of the Applicant's psychiatric disorder for the Tribunal to make a finding that the First Respondent treated her unfavourably because of a disability. As noted above, the definition of disability in section 4 of the Equal Opportunity Act 2010 (Vic) includes a 'malfunction of a part of the body, including a mental or psychological disease or disorder and behaviour that is a symptom or manifestation of a disability.'[92]

1. With respect to Ms Bashour's psychological condition, ANZ submits Ms Bashour must demonstrate that ANZ knew she had the disability the basis of which she says she was subjected to unfavourable treatment, noting it is not her case that she informed ANZ or that ANZ became aware during 2014 she had trauma induced major depressive disorder.[93] ANZ submits Ms Bashour must prove she had the attribute, and that ANZ knew of the attribute at the time of the treatment complained of.[94]
2. With respect to Ms Bashour's pleading regarding 'a purported other disability that she did not have', ANZ submitted Ms Bashour has to prove ANZ presumed she had a disability. This has not been identified by Ms Bashour nor has any evidence been relied on for the purposes of attributing the presumption to anyone at ANZ.[95]
3. ANZ notes it is not part of Ms Bashour's case that she informed ANZ or that ANZ was aware in 2014 she suffered from a trauma induced major depressive disorder. ANZ notes Ms Bashour's case has not been pleaded as a manifestation of symptoms case.
4. Ms Bashour submits ANZ was aware she was '...experiencing a level of distress that put it on notice of a developing mental illness.'[96]
5. Ms Bashour relied on Izzo v State of Victoria (Department of Education and Training)[97] where Moshinsky J held a disability does not need to be diagnosed for it to be relied on as a disability under the Disability Discrimination Act 1992 (Cth), as apparent from the definition of disability in section 4(f) and (g).[98] Further, Ms Bashour distinguished Tate v Raffin,[99] relied upon by the respondents, as the definition of disability under the Disability Discrimination Act 1992 (Cth) when it was decided did not include 'behaviour that is a symptom or manifestation of a disability'.[100]
6. It appears from her submissions Ms Bashour is relying on a symptom or manifestation of a disability she was presumed to have had but did not have. She appears to be relying on her distress as a symptom or manifestation of her trauma induced major depressive disorder. However, she has not identified this in her FAPOC. Her pleading does not specify the purported/presumed disability she was presumed to have or have had at any time or who presumed her to have it.
7. If she is seeking to rely on a 'purported other disability that the Applicant did not have' as her psychiatric disorder, which was diagnosed in 2017, it has not been specifically pleaded as an attribute under her direct disability discrimination claim. It has only been raised in her final submissions. This compares to the fact it has been pleaded for her claims under section 20 regarding reasonable adjustments and section 9 regarding indirect disability discrimination.
8. To claim an attribute has been presumed under 7(2)(d), it should be identified so that the claim can be defended. Instead, Ms Bashour has pleaded 'a purported other disability' without particularising which disability she relies on. This is an omission in this case where her attribute of disability encompasses six different particulars.
9. In Werndly v Commonwealth of Australia[101] Feutrill J considered Mr Werndly's claim that his employer had imputed a disability to him within section 4(a) and (k) of the definition of disability in the Disability Discrimination Act 1992 (Cth) and, at paragraph [16], listed the particulars of evidence given in support of that allegation. In that case, Feutrill J rejected the submission that Mr Werndly had '...not identified the nature and extent of the alleged imputed disability with sufficient precision for the respondents to know the case they must meet at trial.'[102]
10. In this case there is no detail or evidence to explain this part of Ms Bashour's claim. The closing submissions attempt to fill in the detail which should have been included in Ms Bashour's FAPOC if the symptom or manifestation of trauma induced major depressive disorder was sought to be the presumed/purported disability relied upon.
11. Further there is no evidence pointed to by Ms Bashour that ANZ presumed her to have this attribute or to have had it at any time or what the particulars of the attribute entailed.
12. For these reasons, in my view this claimed attribute lacks specificity and has not been proven.

1. In my consideration of the three requests to provide a fitness for work certificate and whether they constitute unfavourable treatment, I foreshadow what appears to be a drafting inaccuracy in the FAPOC regarding the date of the third request.
2. Ms Bashour submitted the requests to provide a fitness for work certificate constituted unfavourable treatment because the requests were inconsistent with the ANZ Sick Leave Policy and unnecessary, '...having regard to the content of the reports of Professor Joubert.'[103] Ms Bashour submitted ANZ already had sufficient information to fulfill its health and safety duties and the pursuit of further information was not necessary for this purpose. Further, ANZ's health and safety duties did not authorise it to take a punitive and insensitive approach to obtaining that information.[104]
3. Ms Bashour submitted that when the requests for fitness for work certificates[105] were made she had provided medical certificates '...which indicated that she had attended Box Hill Hospital Emergency Department and general practitioner Dr Cabena at Burwood Health Care and emailed Liana Edelman on 12 January 2014 to let her know she remained ill and was still undergoing medical investigations.'[106]
4. Further, Ms Bashour submitted on 20 January 2014 she experienced intense neck pain and stiffness from her shoulders and neck causing severe constant headaches at work, which she reported to Ms Edelman and via an Incident Notification Form to the Injury Management Team at ANZ. From 23 January 2014 she provided medical certificates from Professor Joubert, a neurologist and migraine specialist. Professor Joubert also provided a certificate dated 27 February 2014 and a letter dated 27 March 2014.
5. Ms Bashour's complaint dated 5 March 2014 to Mr Chronican and Ms Babani was referred to Ms Turner. Ms Bashour describes to Ms Turner instances of mistreatment which include her being asked to provide the fitness for work certificate. She refers to the 'stress and pressure' she felt.
6. I note the test for what constitutes unfavourable treatment depends on the facts of each case. Further, '[w]hen determining whether a particular set of circumstances come within the statutory formula that defines direct discrimination, the facts must be assessed on an objective basis to ascertain their existence or operation.'[107] As motive is irrelevant to establishing an act of discrimination it follows that no explanation or test of reasonableness is applicable in relation to direct discrimination.[108] In order to determine whether the three emails to Ms Bashour requesting she provide a fitness for work certificate constitute unfavourable treatment, I will consider the evidence regarding the requests by ANZ. I will then consider the impact of the requests on Ms Bashour on a subjective basis and whether the requests constituted unfavourable treatment that placed her under a real disadvantage, which was something of substance rather than 'merely trivial'. At the time Ms Edelman made the requests for the fitness for work certificate she was also asking Ms Bashour to engage in a flexible work assessment. This means there are references to the flexible work assessment in the evidence relating to the requests for fitness for work certificate.
7. With respect to Ms Edelman's requests for her to provide a fitness for work certificate from her doctor, Ms Bashour stated:

At around the time of the workplace conflict and the hostile and unfriendly environment that had developed in my team, I began to suffer serious migraines which were debilitating. I spent Christmas Day and many subsequent days through the holiday break in Box Hill Emergency and attended various General Practitioners. Between 25 December 2013 and early to mid January 2014, I took certified sick leave whilst trying to seek a remedy for the excruciating pain, and a diagnosis for my ailment. I provided all certification to Ms Edelman in her capacity as my Line Manager.

I broke my sick leave period and resumed work on around 20 January 2014, but then took further leave on or around 23 January 2014 pursuant to certified medical certificates with the last certificate expiring on the 28 February 2014. The pressure that I felt my managers were placing on me to break the Flexible Work Arrangement and the workplace hostility was causing me great distress...

On around Friday 28 February 2014, I received a direction from Ms Edelman via email to provide a fitness for work certificate before I commenced work on Monday 3 March 2014.[109]

1. Ms Bashour stated that around 3 March 2014, on her first day back at work from extended sick leave:

On around 3 March 2014, my first day back at work after my extended sick leave, Ms Edelman repeated her direction in a telephone conversation with words to the effect of 'You will need a clearance certificate to return to work.' I asked Ms Edelman on what grounds she was seeking this and where this requirement was documented. Ms Edelman replied to the effect that 'a human resources representative has informed me of the requirement.'[110]

On around 6 March 2014, I was feeling very distressed by Ms Edelman's recent actions as set out above. I felt that her constant pressure on me to enter a new arrangement and her micromanagement of me was adding extra pressure and stress on me, when I was already suffering severe migraine episodes as a result of the workplace conflict. I was worried about the risk that this stress was having on my new pregnancy (at that stage I was approaching 12 weeks into my second pregnancy) so I decided to seek intervention from upper management. At that time, I felt that if upper management knew what was happening, the mistreatment would cease.[111]

1. On 5 March 2014, Ms Bashour made a complaint to Mr Chronican and Ms Babani. On 7 March 2014, Kathryn Turner, Senior Employee Relations Advisor, was appointed as case manager regarding her complaint.
2. Ms Bashour stated '[o]n or around 20 March 2014, Ms Edelman again directed me to obtain further medical evidence from my treating specialist in respect to my fitness to work.'[112] In support of this, Ms Bashour referred to an email and attached a letter Ms Edelman sent to her on 20 March 2014.[113] I note this email was not a direction Ms Bashour obtain further medical evidence of her fitness to work, but a request that she provide consent for ANZ to contact her treating medical practitioner.
3. On or about 28 March 2014, Ms Bashour stated in response to Ms Edelman's request of 20 March 2014 'I provided another medical letter from Dr Joubert stating that I was fully fit for work...'.[114]
4. In her statement Ms Edelman referred to Ms Bashour's sick leave from 2 January until 17 January 2014 and, following a half day of work on 20 January 2014 and her period of working from home on 21 and 22 January 2014, her further period of sick leave until 28 February 2014, after which she returned to work on Monday 3 March 2014.[115] She agreed '...Ms Bashour supplied a number of medical certificates during January 2014. However, those certificates did not provide detail in relation to the nature of her medical condition.'[116]
5. Ms Edelman stated:

On 28 February 2014, 3 March 2014 and 4 March 2014, I emailed Ms Bashour and requested that she provide me with a certificate showing that she was fit to return to work. I made these requests because Ms Bashour had been absent for an extended period (approximately two months) and the medical evidence she had provided to ANZ contained no information about her condition. The four medical certificates which had been supplied by Ms Bashour up to that time stated that she was unfit to attend work, without providing any information about her condition or the adjustments her doctor recommended. In particular, I had no information about the medical basis for the requirement that Ms Bashour sit away from the ADC team, or for how long this requirement might be necessary or why. I also had not been supplied with any information concerning alternative ways in which the ADC team members might continue to communicate with Ms Bashour, or any details in relation to what sort of alternative seating or management arrangements were medically required.[117]

1. On 7 March 2014, Ms Edelman emailed Ms Bashour:

In any event, given the medical certificate you've now provided from Blackburn Specialist Centre, ANZ now has sufficient evidence confirming your fitness to return to work.[118]

1. The relevant documentary evidence is as follows.
2. On 12 January 2014, Ms Bashour emailed Ms Edelman:

Unfortunately I am still unfit to return to work. I have a medical certificate and I hope I can return to work by next week. (week commencing 20 Jan). I will provide you with the medical certificate upon my return.

FYI: I am still undergoing medical investigations. I will keep you posted.[119]

1. A medical certificate dated 10 January 2014 from Dr Daisy Joseph stated Ms Bashour was 'suffering from a medical condition and will be unfit for normal work' from 10 January 2014 - 17 January 2014 inclusive.[120] This certificate was provided to Ms Edelman on 20 January 2014.
2. On 20 January 2014, Ms Bashour attended work at the ANZ office, before suffering neck pain and leaving around halfway through the day. Ms Bashour also lodged an ANZ Incident Notification Form. The ANZ Incident Notification Form dated 20 January 2014 states (summarised):

Date of incident: 23 Dec 2013

Time of incident: 9.00

Specific Location of Incident: Workstation

Brief description of incident: Intense neck pain and stiffness radiating down my shoulders and via my neck to my head- causing severe/chronic and constant headaches.

Immediate actions taken: I am still undergoing medical investigation.[121]

1. A medical certificate dated 23 January 2013 signed J Joubert, Blackburn Specialist Centre stated 'sick leave' from 23 January to 30 January 2014 was emailed by Ms Bashour to Ms Edelman on 23 January 2014.[122]
2. A medical certificate dated 30 January 2013 signed J Joubert, Blackburn Specialist Centre which stated 'sick leave' from 30 January to 28 February 2014[123] was emailed by Ms Bashour to Ms Edelman on 30 January 2014.[124]
3. On 28 February 2014, Ms Edelman emailed Ms Bashour:

Hi Katherine

I hope you are feeling ok.

I thought I would get in touch because your current medical certificate is due to expire today.

You have been absent from work on sick leave since 23 January 2014. Prior to that, you were absent from work on sick leave from 2 January 2014 until 20 January 2014. After returning to work on 20 January 2014, you left work early due to an injury that was causing you pain.

In these circumstances and given the length of your absence from work, before you return to work ANZ requires a medical certificate from your treating doctor confirming that you are fit to perform your role.

Pease call me if you would like to discuss.[125]

1. On 3 March 2014, Ms Edelman emailed Ms Bashour:

Hi Katherine

I understand from Mark you have returned to work today.

As set out in my email to you on Friday morning, given the length of your recent absence from work ANZ requires a medical certificate from your treating doctor confirming that you are fit to perform your role.

Have you brought a medical certificate from your treating doctor? If so, please send it to me as soon as possible this morning.[126]

1. On 2 March 2014, Ms Bashour emailed Mr Shaw. In this email Ms Bashour stated that '... under the advice of my treating specialist I will not be sitting with the team. I will therefore be hot desking.'[127] She offered to show him a copy of her specialist's advice, on request. Ms Edelman was not copied into this email, but it was forwarded to her.
2. On 3 March 2014, by handwritten file note, Ms Edelman noted a telephone conversation with Ms Bashour where she explains:

...that ANZ has a duty to provide her with a safe work environment + it's therefore important + HR are requiring a medical certificate given the length of absence from work.

Katherine queried with me where it was documented that she had to provide a certificate. I said I wasn't sure but that HR have told me it's policy.

...

... she queried why she had to now provide [a medical certificate] saying she was ok to return to work. I again explained that given the length of her absence we want to be sure she's ok to return to work.[128]

1. On 4 March 2014, Ms Edelman emailed Ms Bashour referring to their conversation the previous day, stating '[a]s discussed, please provide me with a medical certificate that confirms you are fit to return to work.'[129]
2. This email also noted Ms Bashour's request to 'hot-desk' at the office and stated:

Request to 'hot-desk' when working from ANZ Centre

I understand that you have received advice from a specialist that you should not sit with the team and, on that basis, have indicated that you would like to 'hot desk' when you are working from ANZ Centre.

To assist us to consider this please provide me with a copy of your specialist's advice.[130]

1. On 7 March 2014, Ms Bashour emailed her reply to Ms Edelman's correspondence. In response to the request that she provide a medical certificate confirming fitness to return to work, Ms Bashour stated:

During our discussion in which you have requested a medical certificate declaring me fit to return to work I did not agree to this request. I asked you on what grounds you required such a certificate and undertook to respond in due course once I had considered the request. I have now done so and do not agree to your request.[131]

1. She referred to having consulted Human Resources and been advised '...none of the ANZ policies or processes require the provision of a return-to-work certificate.'[132] She further stated '[y]ou will appreciate that as a busy working mum, it is inconvenient for me to make unnecessary trips to the specialist for further certificates that are not in fact required.'[133] Ms Bashour points out her concerns about being treated punitively because of her workplace complaints and claim in the Federal Court, and that she is being discriminated against by imposing this additional requirement. She cites insistence on a certificate '...would clearly be an additional breach of s340 of the Fair Work Act, for which you may be personally liable under s550 of the that (sic) Act.'[134]
2. Nevertheless, in response to Ms Edelman's request she provide the specialist's advice regarding her request to 'hot-desk', Ms Bashour attached to her 7 March 2014 email the letter from Professor Joubert dated 27 February 2014. This letter states:

The Employer

Re: Katherine Bashour

Dear Sir,

Katherine is under my care. There is conflict at work and this has led to a medical condition. My recommendation is that she does not sit in her usual work place with the team.'

Your sincerely

J Joubert

FRACP[135]

1. On 7 March 2014, Ms Edelman responded to Ms Bashour:

Thank you for providing the medical certificate from Blackburn Specialist Centre dated 27 February 2014. On the basis of that certificate, you may sit away from the team when you are working at ANZ Centre.

...

...In any event, given the medical certificate you've now provided from Blackburn Specialist Centre, ANZ now has sufficient evidence confirming your fitness to return to work.[136]

1. In this email Ms Edelman noted that Ms Bashour had indicated she would be in the office on Tuesday 11 March and that she would '...send a calendar invite for us to discuss the work you are currently involved in.'[137]
2. On 11 March 2014, Ms Bashour declined a calendar invitation from Ms Edelman. In declining the invitation, Ms Bashour stated in her email:

At the time you requested this meeting I already had a pre-existing engagement in my calendar. So I am unable to accept.

Further, for health and safety reasons, I am unwilling to go against my doctor's advice - a copy of which was provided to you last week (prior to you arranging this meeting).[138]

The doctor's advice that you have provided regarding your seating arrangements when at the ANZ Centre does not include any advice or recommendations regarding your ability to communicate with me or others in the team. Given the health and safety concerns you have now raised, ANZ requires more information about your medical condition, prognosis and any adjustments or accommodation you require as a result of your condition. I will be in touch with you separately to give you more details about the information that ANZ requires and to obtain your medical consent to obtain that information from your treating doctor.[139]

1. On 13 March 2014, Ms Bashour responded '[t]he reasons I declined the invite are clearly set out [in] the email sent to you on Tuesday at 10:24am. Primarily because your suggested time clashed with a pre-existing engagement.'[140]
2. On 13 March 2014, Ms Edelman further responded:

I had understood from your email on 11 March that you declined my meeting request to discuss work with you not only because you had a pre-existing arrangement, but also due to health and safety concerns ... If my understanding is not correct and you do not hold health and safety concerns about meeting with me or talking with me over the telephone, please let me know.[141]

1. On 20 March 2014, Ms Edelman emailed a letter to Ms Bashour requesting permission to obtain information from her treating doctor. In reference to the specialist's advice in relation to Ms Bashour needing to sit away from the team, the letter notes:

...ANZ remains concerned about your fitness to perform the duties of your role and, in particular, the precise parameters of the medical restrictions recommended by your specialist.[142]

1. While Ms Bashour made enquiries with ANZ People Assist about ANZ's policies on whether Ms Edelman was entitled to speak directly with her doctor for more information regarding her illness, it does not appear Ms Bashour directly responded to this email until 28 March 2014. On 28 March 2014 Ms Bashour attached a letter dated 27 March 2014 from Professor Joubert which read:

The employer

Re: K. Bashour

Dear Sir/Madam,

I am the neurologist caring for Katherine.

1. While the workplace conflict remains she should remain where she is currently seated.
2. No other restrictions need to be in place. Electronic and telephonic communications are in order.
3. Workplace stress has led to Katherine's symptoms and it would be appreciated if, until this workplace conflict is resolved, it be noted that these restrictions should be followed.
4. Katherine is fully able to perform her normal duties as compliance manager and in no way, doing this, places herself or others at risk.
5. When this workplace conflict is resolved I feel there will be full recovery.

Yours sincerely

J Joubert

Neurologist[143]

1. In summary, from 26 and 27 December, Ms Bashour was on sick leave with a certificate from GP Dr Cabena stating that she was 'unfit for work'.[144]
2. From 27 until 31 December 2013, Ms Bashour was also on sick leave with a medical certificate from Box Hill Hospital Emergency Department citing she was 'suffering from a medical illness.'[145]
3. From 1 until 12 January 2014, Ms Bashour was on sick leave with another medical certificate from Box Hill Hospital Emergency Department citing she had a 'medical condition.'[146]
4. From 10 until 17 January 2014, Ms Bashour was on sick leave with a medical certificate from Dr Joseph stating she had a 'medical condition and will be unfit for normal work'.[147] This certificate was provided to Ms Edelman on 20 January 2014.
5. On 20 January 2014, Ms Bashour attended work but left after half a day.
6. On 21 and 22 January 2014, Ms Bashour worked from home.
7. From 23 until 30 January 2014, Ms Bashour was on sick leave with a medical certificate stating 'sick leave', signed 'J Joubert'. Ms Bashour emailed this certificate to Ms Edelman on 23 January 2014.[148]
8. From 30 January until 28 February 2014 Ms Bashour was on sick leave with a medical certificate stating 'sick leave', signed 'J Joubert'.[149] Ms Bashour emailed this certificate to Ms Edelman on 30 January 2014.[150]
9. There is no identification on the two certificates provided by Professor Joubert, other than the letterhead 'Blackburn Specialist Centre', to indicate his specialisation or qualification as they were just signed J Joubert.
10. In her statement Ms Edelman stated:

On 28 February 2014, 3 March 2014 and 4 March 2014, I emailed Ms Bashour and requested that she provide me with a certificate showing that she was fit to return to work. I made these requests because Ms Bashour had been absent for an extended period (approximately two months)...[151]

1. Aside from the half day at work in the office on 20 January 2014, and working from home on 21 and 22 January 2014, Ms Bashour was on sick leave from 26 December 2013 for over two months. The medical certificates provide minimal information. The certificates come from two different GPs from different practices, two certificates from a Hospital Emergency Department and two certificates from a doctor of unknown specialisation. There was no indication on the two certificates by Professor Joubert that he was a neurologist and migraine specialist or a professor. The only detail on the letterhead was 'Blackburn Specialist Centre'. It is not until his letter dated 24 April 2014 that Professor Joubert advises that Ms Bashour's medical condition is 'severe migraine episodes'.[152]
2. On 20 January 2014, when Ms Bashour went home from work because of neck and shoulder pain shooting into her head causing headaches, as noted by Ms Edelman, she also advised Ms Edelman she was seeking to see a specialist and have an MRI. She completed an Incident Notification Form reporting an incident having occurred on 23 December 2013. After working from home on 21 and 22 January, Ms Bashour was on sick leave from 23 January until 28 February 2014.
3. There was no further information over the next month and a half. On 28 February 2014, Ms Edelman emailed Ms Bashour requesting her to provide a medical certificate confirming she is fit to perform her role. The email request noted Ms Bashour's medical certificate expired on that day and given her length of absence from work and having left work on 20 January 2014 in pain, that a certificate confirming she was fit for work was required.
4. I take into account Ms Bashour had a sedentary desk job, however she had had time off preceding the event on her return to work on 20 January 2014, and then subsequent time off following working from home on 21 and 22 January 2014. I find it was reasonable for Ms Edelman to make the first request on 28 February 2014 requiring medical approval that Ms Bashour was fit to return to work.

1. When Ms Edelman became aware Ms Bashour was back at work on 3 March 2014, she again emailed her seeking a certificate she was fit to return to work. Both the first and second requests were by an informal email.
2. The second request by Ms Edelman dated Monday 3 March 2014 was following up on her email from Friday 28 February 2014, to which she had not received a response. She had heard from Mr Shaw that Ms Bashour was back at work and in the office.[153]
3. Although motive for the alleged unfavourable treatment is irrelevant, in this case the requests appear consistent with the legitimate acts of an employer to ensure the safe return to work of an employee after a significant absence on sick leave in the context of having very little information about their medical condition.

1. Ms Bashour's FAPOC claims that the third request was dated 20 March 2014.[154]
2. On 20 March 2014, Ms Edelman wrote a formal letter to Ms Bashour seeking permission to contact her treating medical practitioners:

Further to our recent emails regarding your return to work and your specialist's advice in relation to your need to sit away from the team, ANZ remains concerned about your fitness to perform the duties of your role and, in particular, the precise parameters of the medical restrictions recommended by your specialist.[155]

1. As foreshadowed earlier, this letter dated 20 March 2014 is not a further request for Ms Bashour to provide a fitness for work certificate. It is a request from ANZ for her consent to contact her treating medical practitioners to obtain further information about the 'precise parameters of the medical recommendations recommended by your specialist.'
2. This request arose from the 11 March - 13 March sequence of emails, outlined above at [185] - [188], between Ms Edelman and Ms Bashour, in which Ms Bashour declined a meeting invitation, appeared to advise it was in part due to 'health and safety reasons' and appears not to have responded to Ms Edelman when directly asked if she did have health and safety concerns about meeting with her.
3. There appears to be an inadvertent inaccuracy in the FAPOC, as the letter dated 20 March 2014 is not a request for a fitness for work certificate but a request for consent to contact Ms Bashour's medical practitioner for further information.
4. In my view the third request for a fitness for work certificate is in fact made by Ms Edelman on 4 March 2014.
5. The email dated 4 March 2014 stated, amongst other things, '[a]s discussed, please provide me with a medical certificate that confirms you are fit to return to work.'[156]
6. This email also noted Ms Bashour's request to 'hot-desk' at the office referred to earlier at [179].
7. In the context of the above analysis and lack of information regarding her medical condition, this 4 March 2014 email was by way of a follow up reminder in the course of discussions surrounding a request to 'hot-desk'.
8. On 7 March 2014, Ms Bashour emailed her reply to Ms Edelman's correspondence. In response to the request that she provide a medical certificate confirming fitness to return to work, Ms Bashour stated:

During our discussion in which you have requested a medical certificate declaring me fit to return to work I did not agree to this request. I asked you on what grounds you required such a certificate and undertook to respond in due course once I had considered the request. I have now done so and do not agree to your request.[157]

1. Nevertheless, in response to Ms Edelman's request she provide the specialist's advice regarding her request to 'hot-desk', Ms Bashour attached to her 7 March 2014 email the letter from Professor Joubert dated 27 February 2014 referred to earlier at [182].
2. In Ms Edelman's email in response dated 7 March 2013, she notes she is satisfied the fitness to return to work requirement has been met and states '[i]n any event, given the medical certificate you've now provided from Blackburn Specialist Centre dated 27 February 2014, ANZ now has sufficient evidence confirming your fitness to return to work.'[158]
3. Therefore, it appears the email dated 4 March 2014 is the third request for the fitness for work certificate.
4. Treating this as the third request will not change the case that ANZ has to meet. Croft J's ruling in Pizza Fellas Pty Ltd v Eat Now Pty Ltd[159] is that '[p]leadings give notice to the other party of one's case and thereby ensure procedural fairness.'[160] I note in proceedings brought under the Australian Human Rights Commission Act 1986 (Cth) Charlesworth J accepted a submission that '...the ordinary requirement that a party to litigation be confined to its pleaded case should not be adhered to in such a way as to elevate form over substance.'[161] Section 98(1)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') provides that the Tribunal 'must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and proper consideration of the matters before it permit.'
5. As Ms Bashour had not responded to Ms Edelman's requests of 28 February and 3 March 2014 for a fitness for work certificate, in my view the third email request was reasonable.
6. I now consider whether the requests to provide the fitness for work certificate constituted unfavourable treatment.
7. The requests were made by email, the words and tone were neutral and appropriate in an employment context. I do not accept they were either punitive or insensitive in approach, or their manner was excessively harassing or threatening or transgressed the employer's rights to obtain the medical information sought. Ms Bashour submitted the directions to provide a fitness for work certificate were an attempt by Ms Edelman to block her return to work where Ms Edelman presumed she would lose her job. Whilst Ms Edelman agreed in evidence she felt Ms Bashour's failure to cooperate with requests to participate in a flexible work assessment were jeopardising her employment,[162] there is no evidence that Ms Edelman was attempting to 'block' her return to work or that Ms Bashour had serious regard to that, given she returned to work regardless of Ms Edelman saying in her request on 28 February 2014 that a medical certificate was required before she returned to work.[163]
8. Whilst the requests appear to be reasonable in the workplace context, the test is whether the requests constitute unfavourable treatment. Ms Bashour claimed the requests were punitive and insensitive, and caused her stress and pressure.
9. I note the certificate Ms Bashour produced from Professor Joubert dated 27 February 2014, pre-dates Ms Edelman's three requests (28 February 2014, 3 March 2014 and 4 March 2014). It was provided to Ms Edelman on 7 March 2014, following Ms Bashour having offered to provide it to Mr Shaw on 2 March 2014.[164] This tends to call into question the submission that the requests were punitive and insensitive in approach as Ms Bashour already had the certificate in her possession. The terms of Professor Joubert's letter dated 27 February 2014 show it is written in anticipation of Ms Bashour's return to work, namely the statement that '[m]y recommendation is that she does not sit in her usual workplace with the team.'[165] It was not an additional burden for Ms Bashour to obtain the certificate as she was already in possession of it.
10. Ms Bashour also submits the fitness for work certificate was against policy and unnecessary. I am not of the view it was unnecessary in the context of her extended absence on sick leave.
11. I take into account the requirement to analyse the impact of the treatment on the person complaining of it. Ms Bashour describes being 'very distressed'[166] and submitted the requests (including the direction to attend the IME) 'unnecessarily harassed and threatened' her.[167] I note Ms Bashour's absence from work and the minimal medical information available to ANZ. There is no punitive tone in the emails themselves and Ms Bashour was already in possession of Dr Joubert's letter dated 27 February 2014. I am not of the view the three requests by email when viewed subjectively could constitute a real disadvantage as a matter of substance to Ms Bashour. I am not satisfied they constitute unfavourable treatment.

1. As I have found the requests for a medical certificate of fitness for work did not constitute unfavourable treatment, I do not need to consider causation.
2. However, if the requests for medical certificates were found to constitute unfavourable treatment, I do not find causation proven.
3. ANZ had a paucity of specific medical information. The only details about Ms Bashour's condition were from the conversation between Ms Edelman and Ms Bashour on 20 January 2014 and the Incident Notification Form.
4. Ms Edelman stated the requests were made because Ms Bashour had been absent for an extended period (approximately two months) and the medical evidence she had provided to ANZ contained no information about her condition. Ms Edelman was not directly asked in cross-examination whether she made those requests because she was previously on notice about the headaches/migraines. The letter from Professor Joubert dated 27 February 2014, provided following the requests for the fitness for work certificates, does not specify Ms Bashour's medical condition, nor does his letter dated 27 March 2014. ANZ was not formally advised of this until Professor Joubert's letter dated 24 April 2014.
5. In Tate v Raffin, the complainant's membership of a club was terminated because of his behaviour. His behaviour was influenced by his psychological condition but there was no evidence the club knew of the psychological condition. Therefore, it was not possible to conclude he had been discriminated against on the ground of his psychological disability. Ms Bashour correctly submits that the definition of disability now extends to include 'behaviour that is a symptom or manifestation of a disability.'
6. However, that does not provide assistance in this case. It is difficult to establish the causal link when ANZ did not know about Ms Bashour's attribute, in fact, the requests were made because ANZ was unclear about what condition/s Ms Bashour had.
7. ANZ only knew what Ms Bashour wrote in her Incident Management Report and what she had told Ms Edelman of her suffering headaches on 20 January 2014. Over a month elapsed without ANZ obtaining any further information.
8. If ANZ had known more about the nature of the medical condition, or disability, it may not have made the requests.
9. In my view there is no other evidence other than being on sick leave that could have alerted ANZ she was suffering an attribute under the EO Act. Ms Bashour has not claimed being on sick leave as a characteristic of her attribute.
10. The evidence does not support a finding that, had I found the requests did constitute unfavourable treatment, the unfavourable treatment was 'because of' the attribute.
11. The claim for direct discrimination against ANZ on the basis of three requests to provide a fitness for work certificate is not established on the balance of probabilities.

Second claim - Independent Medical Examination

1. On 4 July 2014, ANZ directed Ms Bashour to attend Dr Bernadette White, obstetrician-gynaecologist, for an IME.
2. Ms Bashour claims ANZ's direction for her to attend an IME where adequate medical evidence had been provided was unfavourable treatment because of her attribute, pelvic instability.

Further or in the alternative, in acting as pleaded in paragraphs 86 and 90 by directing the Applicant to attend the Medical Examination in circumstances where adequate medical evidence had been provided, ANZ treated the Applicant unfavourably because of her disability, namely, her pelvic instability.[168]

On 4 July 2014, the Applicant received a letter from Mr Zeman directing her to attend a medical assessment with Dr Bernadette White, an Obstetrician-Gynaecologist, on 15 July 2014 (Direction to Attend the Medical Assessment). The letter warned that there may be disciplinary action if the Applicant failed to attend and contained medical consent forms.

On 10 July 2014, Mr Zeman sent a letter to the Applicant noting that regardless of whether she was still on sick leave the following week, she was still required to attend the appointment with Dr White on 15 July 2014.

1. ANZ admits Ms Bashour was directed to attend the IME referred to in paragraphs [86] and [90] of Ms Bashour's FAPOC.
2. With respect to the 4 July 2014 direction, ANZ's FAD states:

...the Respondents admit that on 4 July 2014, Mr Zeman sent the Applicant a letter directing her to attend a medical assessment with Dr Bernadette White (Obstetrician Gynaecologist) on Tuesday 15 July 2014 at 10.00am. The Respondents otherwise deny the allegations in paragraph 86 and rely on the full terms of the letter.[169]

The Respondents admit that on 10 July 2014, Mr Zeman sent the Applicant a letter regarding the independent medical assessment, but the Respondents say further that prior to sending this letter to the Applicant, on 8 July 2014, and again on 10 July 2014, Mr Zeman emailed the Applicant to set up a time to talk to her about the concerns that she had outlined in her email to Ms Edelman on 7 July 2014. The Applicant did not respond to those requests; and

The Respondents otherwise rely on the full terms of the letter dated 10 July 2014.[170]

1. The respondents deny the allegations in paragraph [145] that they treated the applicant unfavourably because of her disability.

1. Ms Bashour makes the following main points.
2. Ms Bashour submits the direction to attend the medical assessment with Dr White on 15 July 2014, given initially on 4 July 2014, and reiterated on 10 July 2014 despite her objections on the basis of health, were accompanied by threats of disciplinary action, including termination of employment.[171]
3. The submissions note the common law view that employers have a right to direct employees to attend medical assessments and provide medical information, however, that right is not unfettered. The submissions cite Blackadder where Madgwick J referred to it being a question of fact whether a request to attend a medical examination was reasonable, noting it should also involve sensitivity and respect for an employee's privacy. Cases have considered such requests not to be reasonable when not fulfilling a legitimate purpose. For example, in Cederman v Oleochem the request was unreasonable where the pregnant employee's absence was explained by medical certificates.[172]
4. Ms Bashour submitted ANZ directed her to attend the medical appointment to obtain medical information beyond what it genuinely needed, and in a manner which unnecessarily harassed and threatened her. She submitted ANZ's conduct was '...heavy handed, not logically directed towards a legitimate goal and oppressive...'.[173]
5. Further, Ms Bashour submitted, when ANZ directed her to attend the appointment with the gynaecologist-obstetrician chosen by ANZ at the time and date scheduled by ANZ, Ms Bashour had provided three separate reports to ANZ regarding her pelvic instability which addressed ANZ's questions about her condition. She reasonably apprehended the obstetric examination would be of an intimate nature involving an internal examination which ANZ did not correct or clarify for her. She submitted ANZ re-characterised the nature of the direction '...for the purpose of a public relations exercise...' in their response to The Age article on 8 August 2014.[174]
6. In addition to the information ANZ already had available and the failure to clarify the nature of the examination, Ms Bashour submits ANZ demonstrated no flexibility regarding scheduling the appointment and attached disciplinary consequences to Ms Bashour's inability to attend the first scheduled date. Ms Bashour submits this constituted unfavourable treatment.[175]
7. With respect to causal connection, Ms Bashour submitted her pelvic instability was the substantial, if not only, reason ANZ embarked on the course of conduct in directing she attend the IME.
8. In response to ANZ submitting the direction was for the purpose of obtaining sufficient information to determine whether Ms Bashour was fit to perform her duties, in her closing submissions Ms Bashour referred to the tension between the employer's need to inform itself about the employee's fitness to perform their duties safely and the burden attending medical appointments and being subject to examination imposes on employees. She referred to Studart-Teles where the Tribunal held the insistence on an independent medical report was part of its unfavourable treatment.[176]
9. Ms Bashour repeated her reference to Blackadder and referred to Australian and International Pilots Association, submitting that for an employer to require an employee to attend a medical examination there needs to be a genuine indication of a need for the medical examination on reasonable terms.[177] It was submitted Wildman illustrates it is insufficient for an employer to just assert safety concerns as a justification for requiring medical information from employees. It will be necessary to consider whether the employer has sufficient information, the nature of the employee's job and personal circumstances, and the utility of the medical information in relation to its asserted purpose.[178]
10. Ms Bashour submitted her job was not inherently dangerous, nor did her absence from the workplace raise complex operations issues such as those in Australian and International Pilots Association. The physical disability was of limited duration which would cease after she gave birth. ANZ did not make enquiries about her fitness to perform her duties generally nor questions about safely working from home. The questions were solely about her physical attendance at the workplace in Docklands for six weeks. When she was not well enough to attend the appointment, ANZ opted to commence disciplinary action rather than offering a later appointment, which was available. There was no '...urgency from an operational perspective other that the First Respondent's desire to have the Applicant leave her employment.'[179]
11. In respect to causation Ms Bashour submitted ANZ was well aware of her pelvic instability and that is the reason she was directed to attend the IME. Nevertheless, the letter from Mr Zeman to Dr White asks her to confirm the diagnosis of pelvic instability.[180]

1. ANZ admits Ms Bashour was directed on 4 July and 10 July 2014 to attend the IME.
2. ANZ submitted the direction to attend the IME did not constitute unfavourable treatment, it was made to determine whether she was fit to perform her duties and how ANZ could support her to perform them safely, the requests were reasonable, and it was reasonable for the employer to give the direction to determine if the employee is fit for duty and to perform their duties safely.[181]
3. ANZ submitted unfavourable treatment should be given its ordinary meaning and that Ms Bashour must prove the unfavourable treatment was 'because of' the protected attribute, which must be a substantial reason for the unfavourable treatment. To be satisfied the direction was made because of the attribute, the applicant must prove she had the protected attribute, and that ANZ knew of the attribute at the time of the treatment complained of.[182]
4. ANZ submits the information was being sought on a reasonable basis in order to enable ANZ to make an informed decision about the ways in which Ms Bashour might be assisted to work safely.[183]
5. With respect to the attribute of pelvic instability, ANZ conceded it is open to find Ms Bashour suffered from pelvic instability from April 2014.
6. What is in issue is the nature and severity of the condition, and ANZ submitted the evidence suggests the condition was not seriously debilitating.[184]

1. The same legal principles referred to above apply here.

1. I have previously referred to the meaning of unfavourable treatment under section 8 of the EO Act and its interpretation in VCAT cases such as Slattery and VVR v Ironfish, and the Supreme Court cases of Kuyken v Chief Commissioner of Police and Tsikos v Austin Health. The test requires an analysis of the impact of treatment on the person complaining of it. There is also commentary suggesting a rider, namely, that the treatment be detrimental, placing the plaintiff under a real disadvantage as a matter of substance and not trivial.
2. As motive is not relevant there is no test of reasonableness that is applicable to direct discrimination. However, the facts must be assessed on an objective basis to ascertain their existence and operation.
3. The principles regarding the requirement to attend a medical assessment or the requirement to provide a medical report are similar. I have referred to some of these cases previously when considering applicable legal principles in Ms Bashour's first direct discrimination claim.[185] There is further relevant case law about directions to attend medical assessments as follows.
4. The most recent summary of the law on an employer's power to direct an employee to attend a medical assessment is in the Fair Work Act case of Cederman v Oleochem, referred to above, where DP Beaumont stated:

...it is relevant to establish that an employer is entitled to direct an employee to obtain a medical report or to attend a medical assessment if that direction is reasonable. It is also an established principle that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely.[186]

1. In the industrial case Medwell-Everett v Daltug Pty Ltd & Ashworth_[187]_ it was held that once the employer formed the view there was a risk of Mr Medwell-Everett suffering a re-injury or exacerbation of his injury and that event may impact on the other crew and operations of the boat, it was reasonable to impose a genuine occupational requirement that he be fit to undertake his duties, based on the desire to avoid any further injuries and to provide a safe working environment.[188]

1. The same principles of causation apply as referred to earlier.

1. Ms Bashour's claimed attribute is pelvic instability.
2. The attribute of pelvic instability is not in dispute. However, the extent and effect of the condition is in dispute as to whether Ms Bashour was able to travel to her workplace and what adjustments needed to be in place.

1. In consideration of this dispute there are two main factual questions to be considered.
2. The first is a consideration of Ms Bashour's work requirements. The second is the sufficiency of the medical material, as Ms Bashour's claim at paragraph [145] is that the direction to attend the medical examination was in circumstances where adequate medical evidence had been provided. My factual findings with regards to these issues also informs my analysis of Ms Bashour's reasonable adjustments, indirect discrimination and victimisation claims.

1. Since late 2013 Ms Bashour had been in dispute with ANZ about her work requirements, namely how and where they were to be performed. The outcome of the conversation and agreement between Ms Bashour and Mr Shaw at a meeting on 26 September 2013 formed the basis of Ms Bashour's position her employment contract was varied to allow her to work from home four days a week.
2. Ms Bashour's characterisation of the dispute is that ANZ attempted to change the terms of her contract of employment which she maintained had been varied on 26 September 2013 through words in her meeting with Mr Shaw and then by conduct, to allow her to work from home four days a week. Ms Bashour denied her work duties required her attendance at the ANZ workplace.
3. ANZ characterised the dispute by challenging that premise, denying there had been any variation to Ms Bashour's contract of employment to allow her to work from home four days a week. Mr Shaw stated that at the 26 September 2013 meeting, he had agreed Ms Bashour could have the flexibility to choose which two days she would work from home.[189]
4. Ms Bashour signed her contract of employment with ANZ on 19 May 2009. Her contract states:
   1. Position, Reporting Arrangements and Location

Your position will be Manager, Regulatory Change reporting to Peter Harman, Senior Manager, Regulatory Change and Policy / Divisional MLRO and located at Level 24, 100 Queen Street, Melbourne.

Your position is classified as Manager, Group 4.1. At any time following your commencement, ANZ may, at its discretion, change your position, reporting arrangements, duties and location on giving you reasonable notice, following consultation with you, and taking into account your career considerations and personal circumstances. Any such change to your position, reporting arrangements, duties or location will not constitute a termination of your employment, and will not entitle you to any benefits under the termination provisions in this employment agreement.[190]

1. The contract refers to the location at level 24, 100 Queen Street Melbourne. There was no evidence about when Ms Bashour's location of work changed but, by 2013, ANZ's offices located at 833 Collins Street Docklands was Ms Bashour's place of work.
2. There is a reference to codes, policies and procedures which are noted not to be incorporated into the terms of the contract of employment:

10. Codes, Policies and Procedures, Performance Management Plans

10.1 Codes, Policies and Procedures

In addition to the terms and conditions contained in this employment agreement, ANZ has codes, policies and procedures that apply to your employment (although, unless stated otherwise, they are not specifically incorporated into this employment agreement). These codes, policies and procedures may be varied by ANZ from time to time.

You must read, and be familiar with, all ANZ codes, policies and procedures as varied from time to time.[191]

1. Ms Bashour had worked variously one, then two days from home during her employment with ANZ up until October 2013 when she commenced working from home four days a week.
2. Following a flexible work arrangement review, completed on 20 March 2014, ANZ offered Ms Bashour five days in the office per fortnight arrangement, with a minimum attendance at the office of two days per week.
3. Ms Bashour declined this offer, stating the variation of her contract allowed her to work four days from home, noting the matter was before the Federal Court, that she had not requested a flexible work arrangement under the policy, was unable to re-arrange childcare arrangements at short notice and there was no benefit to the Bank for her to be physically present at ANZ Centre.[192]
4. In order to consider what constituted Ms Bashour's work duties, I turn to consider the evidence about whether there was an agreement or contract variation that she could work from home four days a week. If there was an agreement and this was a legitimate aspect of her work duties, the factual finding is relevant to ANZ's subsequent directions.
5. I commence with the meeting between Ms Bashour and Mr Shaw on 26 September 2013 and the outcome. I have taken into account the witness statements, the evidence at hearing and the documentary evidence in the Tribunal Book which I will not replicate here. A significant part of the meeting concerned why Ms Bashour did not get the promotion which I refer to here only in passing.
6. I do not find there was agreement for Ms Bashour to work from home four days a week or a variation to her contract of employment for the following reasons.
7. Firstly, Ms Bashour's contract of employment makes no mention of working from home arrangements. Ms Bashour had previously worked from home as follows: firstly, when she commenced at ANZ in 2009, she worked from home one day a week, and secondly, when she returned from parental leave in April 2013, she worked from home two days a week. From 7 October 2013 she stated her contract was varied so that she could work from home four days a week. There is no evidence Ms Bashour's contract of employment was varied in writing or by oral agreement either when she commenced at ANZ in 2009 or in April 2013 to reflect those working from home arrangements.
8. There is no evidence of a written variation to Ms Bashour's contract of employment following her 26 September 2013 meeting with Mr Shaw. Both parties have to agree, or reach a meeting of minds, to vary an employment contract. The terms of Ms Bashour's contract of employment specifically excludes policies as incorporated into the employment agreement. In her Federal Court affidavit Ms Bashour recounted her conversation with Mr Shaw who referred to the process and it being cumbersome, saying '...there is a heap of forms and paperwork to complete to make it happen. Leave it with me', '[i]t's up to me to register it with payroll'.[193] Ms Bashour states 'I took this to mean "the process for making an official change to my contract of employment".'[194] Mr Shaw denies there was any such agreement. It is a case of Ms Bashour's and Mr Shaw's competing oral and written accounts. I find the evidence is insufficient to be satisfied there was a variation to her contract.
9. Secondly, I refer to the written statements. Although Ms Bashour made two Federal Court affidavits, only the first one dated 11 August 2014 was tendered in these proceedings. Ms Bashour's 16 March 2017 statement in this proceeding ('16 March 2017 statement') also describes the meeting on 26 September 2014. Mr Shaw made a Federal Court affidavit dated 10 October 2014[195] and a statement for this proceeding dated 6 April 2017.
10. In her Federal Court affidavit dated 11 August 2014 Ms Bashour described the meeting on 26 September 2013, detailing a conversation with Mr Shaw in which he was in favour of her proposal to work from home four days a week, told her of her performance rating, indicated he would make sure she got a pay rise and said he would look around for other Group 3 positions for her.[196] The same record of the conversation is also included in Ms Bashour's 16 March 2017 statement.[197]
11. In her 2017 statement, Ms Bashour describes the meeting on 26 September 2013 with Mr Shaw as follows:

I said: 'Now I would like to discuss my Flexible Work Arrangement. I have completed my 6 month work from home trial, and I want to approach you about greater flexibility so I can work from home due to my family responsibilities.

I was meaning to broach this subject with you regardless of the Promotion outcome, and I have compiled some print-outs from Max, including a Job Assessment Tool. I have applied the Job Assessment Tool against my role, and considering I now don't have any senior responsibilities and do not have any direct reports to manage, I'm not expected to run the team, I don't need any special software that requires me to be in the office, I don't have any customer interfacing; and my job description allows for flexible working, so according to the Job Assessment Tool, I can work from home.

As my child is no longer an infant, her needs and requirements are changing. It's quite traumatic waking her by force at 5:30am in order to prepare her for the day. I get up at 5am and get myself ready, then my daughter at 5:30am because it's a struggle to get her ready and force feed her breakfast in order to drop her to my mum's by 6:30am.

She is traumatised by being woken up by force so early in the morning. She is a baby, and breaking her sleep can't be healthy. She screams and cries hysterically and can't open her eyes. It is a struggle to even feed her breakfast as she is emotional and inconsolable. It breaks my heart.

I then have to leave her at my mum's in an emotional state in order to commence my 90 minute journey to work. This consists of getting a lift to Doncaster Park 'n ' Ride from Templestowe. Then it's a bus journey in to Melbourne CBD, and then 2 connecting trams down to Docklands.

Then I have to leave docklands at 4pm to pick her up from care. I have to collect her no later than 5.30pm as the carer has other commitments to attend to. In the evening I have to then make up the difference in working hours from my home office.

It is unnecessary for me to physically sit in the Docklands office as my job does not require it, and the detriment to my child is disproportionate.

If I work from home, my baby can sleep in and wake up naturally. She is a happy little person, eats her breakfast and I can easily drop her off at mum's and be back home and online by 8.30am.

I could have lunch with my daughter every day as mum's house is a very short distance away. This allows me a chance to bond with, and feed my daughter instead of being separated for 11 hours each day, and dropping her off in a distressed state in the mornings.

This way, I feel like I am fulfilling my motherhood role whilst also fulfilling my job requirements. The Bank will also benefit because I'm replacing my travel time with work time and it suits the job description.

I have also found these articles on Max [I tabled the articles] one which showcases a General Manager who works flexibly due to her family responsibilities. She uses her office days to connect, whilst at home she is far more productive. It indicates she works 4.5 days each week, and she divides her time between home, other places as she wishes, and the office. So if a General Manager can do it, so can I. Considering I'm not even a Senior Manager, let alone a General Manager, this has been inspiration for a formal request. I would like to condense my face to face meetings to one day per week and the other 4 days I can work from home and can be contacted via phone and email. It's good timing because as of Monday I will have completed my 6 month flexible work trial.'

Mr Shaw said: 'That's fine, I don't need to read the article. Over the

last 6 months you have proven yourself as very disciplined and you are always available and online when I need you. We just had the round table discussions and you have received a performance rating of 2 which is fantastic given that you have only been back for 6 months and are working from home 2 days each week, so you can obviously juggle working from home. It's still early, but I will need to wait and see what comes out of the remuneration tool as a result of the round table discussions, but I will also make sure you get a pay rise as well.'

I said: 'That's great. Thank you'.

Mr Shaw said: 'I don't even remember which days are your set work

from home days, because each time I've needed you, you've been there. Dialling into meetings is not a problem, but I want to make sure that you are still connected and engaged.'

I said: 'That's the purpose of the one day in the office as my connect day. Like the article, I will devote that day to attend to important face to face meetings and any catch ups and interfacing. I also want to let you know that I have a proper set up at home, I have a lock on the office door so at all times ANZ material is secure.'

Mr Shaw said: 'That's fine, you can start immediately, but I will need

you to email me before the start of each week letting me know your timetable, just so I know which day I can expect you in the office.'

I said: 'I want this change to be official.'

Mr Shaw said: 'Well, I'm going to need some time then, the process

is so cumbersome, there is a heap of forms and paperwork to complete to make it happen. Leave it with me'.

I said: 'Is next Monday enough time?'

Mr Shaw said: 'Sure.'

I said: 'Do I need to do anything? Do I need to complete or sign any forms?'

Mr Shaw said: 'No. It's up to me to register it with payroll. From the

round table discussions it's evident that you have a really solid reputation. I'm going to ask around and see what other Group 3 positions around the Bank may be well suited for you.

I want to thank you for approaching me directly and not escalating or discussing this matter with others. You handled the matter very professionally and for that I'm grateful.

You don't need to do anything at all, just start the new arrangement Monday 7 October.'[198]

1. Ms Bashour stated Mr Shaw agreed to her working from home four days a week. Ms Bashour stated the arrangement constituted:

...an official variation to my contract while I had family responsibilities. I understood this on the basis of Shaw's response to me when I insisted that I wanted the change to be 'official'. When Shaw said that 'the process' was cumbersome and there was a lot of paperwork to file with payroll, I took this to mean 'the process for making an official change to my contract of employment.'[199]

1. Ms Bashour specified there was no mention of the ANZ Flexible Work Arrangement Policy which she 'was unaware of the existence of',[200] the arrangement was to commence on 7 October 2013 and Ms Bashour was to send an email no later than each Monday nominating her 'office day' for the week.
2. Mr Shaw's version in his affidavit and statement of the conversation on 26 September 2013 conflicts with Ms Bashour's version.
3. Mr Shaw's version is that on 26 September 2013, Ms Bashour requested a meeting, and they had a conversation about the choice of Ms Edelman for the Senior Manager role. Mr Shaw stated the conversation continued and Ms Bashour asked firstly for increased remuneration and then for more flexibility. He reports that she said '...that she had a long commute and it frustrated her to come to work when she didn't have any meetings and could work from home.'[201] Mr Shaw states she did not state she wanted to change her current arrangements because her child was distressed, or because of her caring responsibilities.[202] Mr Shaw stated he said she could have flexibility about which particular days she chose to work from home but the number of days worked at home and in the office would not change. He noted:

I was open to this arrangement because I support flexibility where it is consistent with the needs of the business and there had been no issue with the current arrangement where she worked from home every Wednesday and Friday.[203]

1. Mr Shaw stated Ms Bashour responded to the effect, '[i]t would be really good if I could do that.'[204] Mr Shaw asked her for a timetable each week indicating the days she would attend the office, to which she agreed. Mr Shaw stated it was important for her to be visible in the office for herself, the team and the stakeholders.
2. He stated, '[a]t the time, Ms Bashour was working on a due diligence project which involved document review. I thought this task was suitable for Ms Bashour to work on at home.'[205]
3. Mr Shaw stated Ms Bashour did not request to work from home four days a week, it was not discussed, and he did not agree to it. If it had been raised, he could not agree to it as he '...would have escalated the request to my Line Manager and human resources before approving such an extreme arrangement. Ms Bashour and I did not discuss varying her contract.'[206]
4. Mr Shaw stated such an arrangement was not workable or realistic for a Group 4.1 Manager to be in the office one day a week because of short notice meetings with regulators and meetings with representatives of the business in advance of those meetings to prepare.[207] The Group 4.1 position required more visibility than one day in the office a week and 'Ms Bashour was expected to engage with stakeholders and proactively consider potential compliance issues.'[208]
5. Further Mr Shaw stated he delegated almost a third of his meetings to his direct reports, often at short notice. If she was not in the office, it was difficult to delegate work effectively to her.[209]
6. Mr Shaw denied there was a discussion about lodging a formal application for a flexible workplace arrangement during the 26 September 2013 meeting. He stated he was unaware that these arrangements were required to be approved and documented consistent with the ANZ Flexible Work Arrangements Policy.[210]
7. He stated there was no end date for the arrangement they made, rather an intention to see how it worked for both her and the team.[211] It was to commence on 7 October 2013 at Ms Bashour's request.[212]
8. Ms Bashour's version in her statement is that Mr Shaw not only agreed to her working from home four days a week, but that he would speak to payroll and prepare the necessary paperwork. Mr Shaw denied this, and denied it was raised or discussed, saying he only agreed to Ms Bashour having flexibility about which two days she would work from home. If it had been raised, he stated could not agree to it as he '...would have escalated the request to my Line Manager and human resources before approving such an extreme arrangement. Ms Bashour and I did not discuss varying her contract.'[213]
9. Significantly, Mr Shaw denied he had the requisite authority to authorise Ms Bashour to work from home four days a week. In 2013 a four-day working from home arrangement at ANZ was an 'extreme' or a 'never heard of arrangement' for someone of Ms Bashour's seniority and role.[214] In their statements both Mr Shaw and Ms Bashour give examples of other ANZ employees with workplace flexibility at that time, however in each example the employee worked either one or two days at home.
10. Ms Bashour was cross-examined about the meeting on 26 September 2013 and was not shaken in her position regarding the agreement with Mr Shaw. Ms Bashour typed up a version of her written notes from the 26 September 2013 meeting. In her typed notes she refers to Mr Shaw taking action on flexible work arrangement '...in consideration for me "getting over it" and moving on.'[215]
11. I did not find Mr Shaw's credit to be impugned in cross-examination. Although he gave evidence for one and a half days at the hearing, he was not specifically cross-examined about the contents of his discussion with Ms Bashour on 26 September 2013 including, particularly, this key disagreement about whether he agreed to Ms Bashour working from home four days a week and whether he advised Ms Bashour he would do the necessary paperwork to give effect to the four day work from home arrangement.[216]
12. There is no reason on the basis of the statements and evidence at hearing to prefer Ms Bashour's version over Ms Shaw's.
13. Thirdly, regarding the contemporaneous notes, Ms Bashour gave evidence she made contemporaneous handwritten notes of her meeting with Mr Shaw, which she typed up into a file note two days later.[217] The relevant part states:

It was agreed that in consideration for me 'getting over it' and moving on MS would:

• Implement a flexible working arrangement - 4 days at home and condense 1 day for all meetings. The day in the office would be flexible depending on when I was needed. So MS asked that at the start of the week I would email him my timetable. He said that he will prepare the necessary paperwork but it's not a problem as I have proven myself as being disciplined in working from home and as always available. I noted the article on max encouraging flexible working arrangements.

The Work From home arrangement to commence on Monday 7 October 2013.[218]

1. On 10 December 2013, Mr Shaw emailed his version of the discussion to Mr Zeman, which included:

She then asked that, having not received the role, whether it was possible to have greater flexibility in her work arrangements than the two set work from home days each week (this arrangement was already in place when I arrived in the team).

Katherine indicted (sic) that given she had a 90 minute commute, she wanted to be able to work from home when she didn't have any meetings to attend.

I said I was open to an arrangement where she varied the days she worked from home based on her meeting schedule on the basis that a) she ensured she always made herself available to meet with people as required & would adjust her schedule as needed to meet business needs including and b) she informed me of here (sic) whereabouts at the start of each week.

Katherine fully accepted this and said that she had always come into the office when she had important meetings to attend or was asked to by her manager under her existing arrangement.[219]

1. Ms Bashour's typed file note two days later, on 28 September 2013, is evidence that supports her version of the conversation. It is more contemporaneous that Mr Shaw's attachment to his email sent on 10 December 2013, two and a half months later, to Mr Zeman. However, Mr Shaw also sent an email to Ms Bashour dated 18 November 2013, following the 11 November 2013 meeting in which he confirmed their conversation on 11 November 2013 and stated the arrangement is not to work from home 4 days a week on a permanent basis.[220]
2. I take into account the following considerations regarding Ms Bashour's written notes of the meeting.
3. Ms Bashour's 16 March 2017 statement, more than three years later, contains far greater detail of the conversation than that contained in her typed file note dated 26 September 2013. In her typed file note the flexible working arrangement is described as 'in consideration for me 'getting over it' and moving on' and in her 16 March 2017 statement the reason focuses on her family responsibilities regarding her young child.
4. Ms Bashour refused to provide the typed file note to Mr Zeman when he was investigating her complaint and Mr Shaw's referral of the matter in December 2013. Her explanation for why she did not provide the note in her statement and during cross-examination was that she wanted to salvage her relationship with Mr Shaw and not get Mr Shaw into 'trouble.'[221] In a case which was essentially her word against his, this was the first opportunity to put her strongest case whilst the issue was being investigated.
5. Ms Bashour was not discredited regarding her creation of the typed note, however equally Mr Shaw also recorded his version of the meeting and outcome on two occasions in writing, although not as contemporaneously as Ms Bashour.
6. Fourthly, Ms Bashour stated she confirmed the four-day work from home arrangement by email to Mr Shaw dated 27 September 2013, which stated:

I note the flexible work arrangement agreed to during yesterday's meeting. I confirm that this will start week commencing 7 Oct - as requested I will email you the weekly timetable no later than Monday morning of each week.[222]

1. In the context of Ms Bashour having negotiated an unusual and highly favourable arrangement, this email is inconclusive. I find it inconsistent that at this early point, namely the day after the discussion, that she did not note any detail of the purported variation to her contract, and the four-day work from home arrangement in the confirmatory email to Mr Shaw. The reference to emailing him a 'weekly timetable' does not refer to her 'one day in the office'. This reduces the weight I accord this as a 'confirmatory' email.
2. I note also at the 'informal coffee catch up' with Ms Edelman on 8 October 2013 Ms Bashour does not mention the four-day work from home arrangement, despite this being the day after the new arrangement was to have started. At this early meeting between the two Ms Edelman described Ms Bashour as professional and neutral.[223]
3. Ms Edelman commenced in her new role on 30 October 2013 and noticed Ms Bashour was not in the office frequently, but working at home as she was responding to emails. When she asked Mr Shaw, he stated, 'Katherine isn't coming in a lot at the moment. It needs to be sorted out.'[224]At this point Mr Shaw did not mention Ms Bashour was asserting her right to work from home four days a week. Ms Edelman did not learn that there was a disagreement about the terms of Ms Bashour's flexible working arrangement and that Ms Bashour was asserting a right to work from home four days per week until 18 November 2013.[225]
4. Either at the informal coffee catch up, or when Ms Edelman commenced as her new line manager, it would be reasonable to expect Ms Bashour would have informed her of the new arrangement.
5. Fifthly, Ms Bashour submitted the variation to her contract of employment was also by conduct. In addition to the aforementioned 27 September 2013 confirmatory email to which Mr Shaw responded, 'Thanks Katherine', Ms Bashour produced emails dated 7 October 2013, 11 October 2013, 21 October 2013, 3 November 2013, 6 November 2013 and 11 November 2013 nominating her 'office day'.[226] Mr Shaw responded to the 7 October 2013 email with 'Thanks KB' but does not appear to have directly responded to the other five emails from 11 October to 11 November 2013. Relevantly, Ms Bashour also states Mr Shaw was on leave from 24 October 2013 to 11 November 2013.[227] The absence of his response, in part owing to him being on leave for 18 days, tends to weaken Ms Bashour's contention that the variation to her contract was accepted by Mr Shaw's conduct.
6. In her Federal Court affidavit Ms Bashour stated '[h]ad I misconstrued wholly this offer by Mr Shaw, any manager would have rectified that miscommunication promptly which was not done. No issue was raised until after I made a complaint.'[228]
7. In evidence Mr Shaw conceded he was slow to take action about Ms Bashour only being in the office one day per week, as he was busy with work and conscious of Ms Bashour not having got the Senior Manager role.[229] She was also working on a project at that time which he considered was suitable for working from home for a limited period.[230]
8. Mr Shaw stated:

...she was obviously - had been upset about the not being promoted.... In my mind... she was just...needing some time to kind of process that. You know, I - there was a lot of other stuff going on, so it was sort of like, something that I probably - as I've said earlier - probably should have dealt with earlier but didn't. And it was sort of something I probably put in the 'I'll have to deal with that at some point' or hopefully she'll start coming to the office more...[231]

1. Mr Shaw's statement states that on 11 November 2013, at a meeting with Ms Bashour, they had a conversation regarding her flexible work arrangements in which he told her the arrangement was not to work from home four days a week.[232] His evidence was Ms Bashour seemed to accept this.[233] After receiving an email dated 18 November 2013 from Ms Bashour nominating her office day for the following week as Tuesday, Mr Shaw responded by email stating:

As we discussed last week, I want to be clear that the flexibility arrangement you have is not to work from home 4 days a week on a permanent basis. From next week I would like you to be in the office at least 2 days please.[234]

1. However, Ms Bashour's reply dated 21 November 2013 re-iterated the flexible work arrangement was to work from home four days a week, indicating that she would be most grateful if he would continue to support and accommodate her family responsibilities.[235]
2. Ms Bashour's first statement includes a record of her conversation with Mr Shaw on 11 November 2013. There is no reference to Mr Shaw stating there was no agreement to work from home four days a week although she records he asks '...how is the flexible work arrangement going?'. As part of this exchange, Ms Bashour records the following in her statement:

Mr Shaw said: 'I want to confirm the arrangement is not permanent,

right?'

I said: 'Yes, I know it's not for ever. It's just whilst I have family responsibilities.'[236]

1. However, in Ms Bashour's written complaint to ANZ Human Resources, dated 29 November 2013, she notes that at the meeting of 11 November Mr Shaw '...raised the New Arrangement at which time he indicated that he wanted me to come into the office for an additional day...'.[237] Ms Bashour's most contemporaneous account of this meeting to Human Resources indicates that Mr Shaw raised that he wanted her to attend the office for an additional day. This is consistent with Mr Shaw's evidence that at this meeting he advised there was no arrangement for her to work from home four days per week. Mr Shaw records that:

I then raised the issue of her flexible work arrangement. I said words to the effect, 'I just want to be clear, the arrangement is not for you to work from home four days per week'. Ms Bashour told me that she was making it work, but indicated to me that she understood that this was not the arrangement. I took her response as an indication that any misunderstanding on her part about the terms of her arrangement had been sorted out.'[238]

1. There is an inconsistency in Ms Bashour's evidence regarding the 11 November 2013 meeting: her written complaint to Human Resources refers to Mr Shaw asking her to come into the office an additional day, whereas in her 2017 statement she records Mr Shaw at this meeting stated, 'I want to confirm the arrangement is not permanent,' to which she replied, 'yes I know it's not forever.' There is also an inconsistency in that if the arrangement was a variation to Ms Bashour's contract as she states, why would it not be permanent. In my view there was some miscommunication as to what was agreed to at the meeting on 26 September 2013, although I do not accept Mr Shaw agreed that Ms Bashour could work from home four days a week on a permanent basis. A month passed and during that time Ms Bashour worked from home four days a week without demur from ANZ (noting Mr Shaw was on leave from 24 October to 11 November 2014). This may have led her to believe that it was agreed she could work from home four days a week and confirmed her view her role did not require her to be in the office more than one day a week.
2. I accept Mr Shaw's evidence as to why he was both slow and reluctant to initially challenge Ms Bashour's emails nominating one day in the office. I also accept Mr Shaw's evidence that at the 11 November 2013 meeting he confirmed with Ms Bashour there was no agreement for her to work from home four days per week. I do not accept his 'conduct' constituted acceptance of a variation to Ms Bashour's contract of employment.
3. Sixthly, Ms Bashour noted the reasons why she believed her role did not require her to be in the office. For example, she stated, '...I did not have any interfacing requirements with branch staff, nor was I needed for any customer interfacing or call centre interfacing.'[239] This was disputed by Ms Edelman who described Ms Bashour's duties as including interacting with and influencing people on a daily basis in these terms: 'It was important to attend the office more often - not only for her own professional standing and relationships, but also for the effective functioning of the ADC team.'[240] Mr Shaw's view was that '...an arrangement whereby a Group 4.1 manager is in the office only one day per week is not workable or realistic.'[241] The flexible work arrangement assessment conducted by ANZ Human Resources concluded the role required Ms Bashour to be in the office at least two days a week.[242]
4. I prefer the evidence from Ms Edelman and Mr Shaw that the duties of the role required Ms Bashour to be in the office more than one day a week, which is confirmed by the results of the flexible work arrangement assessment. I give greater weight to Ms Edelman and Mr Shaw's evidence as senior managers, and their knowledge and experience of the business needs of the ADC team.
5. For the above reasons, together with the inherent implausibility (referred to by Mr Shaw as 'extreme' and Ms Edelman as 'never heard of' in 2013), I find there is insufficient evidence to be satisfied on the balance of probabilities there was an agreement by Mr Shaw for Ms Bashour to work from home four days a week and a variation to her contract of employment. Ms Bashour bears the onus to prove the facts upon which she relies. I am not satisfied on the balance of probabilities she has discharged her onus.
6. I am satisfied Ms Bashour's contract of employment was not varied as a result of the meeting between Ms Bashour and Mr Shaw on 26 September 2013. Her contract of employment required her to attend the office and as a result of the ANZ Flexible Work Assessment outcome that requirement was modified whereby she was required to attend the office at least five days in a fortnight.

1. The second factual question concerns the sufficiency of the medical material.
2. Ms Bashour's diagnosis of pelvic instability was conceded by ANZ however its extent and effect were in dispute. Ms Bashour's position was that her obstetrician, Dr Chew's letters confirmed that owing to her pelvic instability she needed to work from home five days a week. ANZ did not accept this is what the letters said and sought further information from Dr Chew regarding the extent and impact of Ms Bashour's pelvic instability including what adjustments could be made to accommodate Ms Bashour attending the workplace.
3. I intend to make a factual finding considering the sufficiency of the medical evidence. This finding is relevant to whether it was reasonable for ANZ to seek further information, which ultimately led to them directing Ms Bashour attend for an IME. I am conscious that whether the direction was reasonable is a test relevant to employment law disputes and that different tests apply in discrimination law. However, this consideration will settle the factual context regarding the sufficiency of medical information to then consider Ms Bashour's discrimination claims for which pelvic instability is the claimed disability attribute. The evidence at the hearing was that pelvic instability affects 40 to 50% of pregnant women and its symptoms and effect have a significant variation.[243]
4. In opening submissions Ms Bashour refers to ANZ's attempts to obtain further information about her pelvic instability were implemented in a manner which focussed unnecessarily on the setting of hurdles for the purpose of attaching disciplinary proceedings.[244]
5. The context to this factual dispute is that since November 2013, Ms Bashour and ANZ had been in dispute about her working from home four days a week.
6. Dr Chew wrote three letters dated 28 April 2014,[245] 15 May 2014 and 30 June 2014, which Ms Bashour provided to ANZ.
7. On 18 May 2014, Ms Bashour emailed Ms Edelman and Mr Shaw and advised she was not able to commute into Docklands between now and commencing maternity leave and would be working from home five days a week because of her pelvic instability. In this email Ms Bashour attached Dr Chew's letter dated 15 May 2014 which states:

Katherine is currently pregnant and is under my antenatal care. She has been suffering from pelvic instability and associated back and pelvic pain. This pelvic instability is exacerbated by long periods of travel and walking Katherine is finding that travelling in to her workplace at Docklands is also exacerbating her discomfort. I have advised Katherine not to travel long distances or walk long distances. I feel she is fit for work as long as she considers her pelvic issues.[246]

1. Ms Bashour did not consent to ANZ contacting Dr Chew directly to seek further information, so ANZ provided two letters dated 21 May and 3 June 2014 to Ms Bashour with questions for Dr Chew.
2. In issue is what information Ms Bashour communicated to Dr Chew, and what Dr Chew's letters recommended.
3. In response to Ms Bashour's email of 18 May 2014, Ms Edelman provided a letter dated 21 May 2014 to Ms Bashour asking six questions for Dr Chew to answer.
   • a summary of the effects of Ms Bashour's condition and the effects of any medication/procedures used in treatment of the condition or its related symptoms to the extent that they might affect her ability to perform her role;
   • how Dr Chew had made the assessment that travel to the Docklands had exacerbated Ms Bashour's pelvic instability, first mentioned in the letter from Dr Chew dated 28 April 2014, in circumstances where Ms Bashour was on annual leave for the period 15 April 2014 to 18 May 2014;
   • the prognosis of Ms Bashour's condition;
   • based on the prognosis, how long any restriction that she not travel to the Docklands would need to be in place;
   • any reasonable adjustments that Dr Chew recommended ANZ take to ensure that Ms Bashour was able to safely perform her role; and
   • whether Ms Bashour required access to special unpaid maternity leave or transfer to a safe job under the ANZ Parental Leave Policy (Schedule - Australia).[247]
4. As Ms Bashour was not able to obtain an appointment with Dr Chew, she drafted an email dated 30 May 2014 to Ms Edelman answering the six questions herself. In his letter dated 15 May 2014 Dr Chew refers to 'long distances' and that 'Katherine is finding travelling in to her workplace at the Docklands is also exacerbating her discomfort.' Although Dr Chew had stated she should not be travelling long distances, Ms Bashour specifically disputed that this meant she should not be commuting to the Docklands. In her answer to Ms Edelman's request for information dated 21 May 2014 and question 4: based on the prognosis, how long any restriction that she not travel to the Docklands would need to be in place; Ms Bashour stated '...the restriction is not based on travelling to Docklands, the issue is travelling and walking long distances regardless of destination.'[248]
5. In a follow up letter dated 3 June 2014 Ms Edelman repeated the above questions to Dr Chew and raised the question of adjustments ANZ was able to make to accommodate Ms Bashour's pelvic instability. These were:
   • on-site car parking at 833 Collins Street (free of charge);
   • an anchored position at a desk which his close to the lifts and bathrooms and which would remain away from your team (given your pre-existing medical restrictions);
   • a standing booking for a meeting room close to your anchored desk so that others can come to you for all your meetings and you do not need to walk around the building unnecessarily.[249]
6. Ms Bashour sent the following email dated 24 June 2014 to Dr Chew, attaching his report dated 15 May 2014 and asking him to answer the following questions:
   • Summary of the effects of the condition and the effects of any medication/procedures used in treatment of the condition or its related symptoms to the extent that they might affect your ability to perform the role of compliance manager (e.g. the effects of painkillers that may have been prescribed);
   • the prognosis of the condition;
   • based on the prognosis, how long the recommendation restriction that I do not travel or walk long distances be in place for;
   • any support of reasonable adjustments Dr Chew can identify that the Bank should take to ensure that I can safely perform my role;
   • whether I need designated car parking at Docklands and/or an anchored desk or a special booking room.

I have not been travelling to the Docklands since 15 May and have been fulfilling my duties - essentially no there is no genuine requirement that I need to attend the Docklands. I haven't taken any time off work regarding this matter and I am fit for work, but as part of normal procedures, my employer has asked for these questions to be addressed.[250]

1. In cross-examination Ms Bashour was asked why she did not attach the two ANZ letters of 21 May and 3 June 2014 to this email, and why she omitted two of the questions ANZ had wanted Dr Chew to answer, namely:
   • how Dr Chew had made the assessment that travel to the Docklands had exacerbated Ms Bashour's pelvic instability (first mentioned in his report dated 28 April 2014) in circumstances where Ms Bashour was on annual leave for the period 15 April 2014 to 18 May 2014;
   • whether Ms Bashour required access to special unpaid maternity leave or transfer to a safe job under the ANZ Parental Leave Policy (Schedule - Australia).
2. It was put to Ms Bashour she omitted this information because she did not want Dr Chew to know she had not been working at Docklands for some time.[251]
3. In response Ms Bashour stated the email was a 'heads up' to Dr Chew's staff she would be bringing a letter from work that needed a response, and that she handed Dr Chew a physical copy of ANZ's letters during her appointment of 27 June 2014.[252]
4. The email from Ms Bashour to Dr Chew notes she has not been 'travelling to the Docklands since 15 May' when in fact her last attendance at the ANZ office had been 11 April 2014.
5. Ms Bashour gave evidence she attended Docklands on 20 April 2014 to purchase maternity wear from the store 'Temt'. Ms Bashour's evidence was that she told Dr Chew about this trip and that it caused her discomfort, but she could not recall whether she told Dr Chew this trip was not for work purposes but was to purchase maternity clothes.[253]
6. I have found it was part of Ms Bashour's duties that she was required to be in the office at least five days a fortnight. On that basis, a reasonable question for ANZ to ask was whether Ms Bashour is able to travel to the Docklands.
7. Dr Chew's letter dated 30 June 2014 states:

Katherine is currently pregnant and is under my antenatal care. As previously noted, she has been suffering from pelvic instability, with associated back and pelvic pain. Katherine will continue to suffer from pelvic instability, it will also deteriorate as her pregnancy progresses. Her mobility is restricted, therefore she needs to refrain from long distance travelling. Regardless of a designated car park, this still would not provide relief for Katherine as she requires assistance with her mobility to her destination. Katherine is fit for work and she will have no long-term effects if proper care is taken. The symptoms will be resolved after her confinement. Unfortunately, no medication can be prescribed to manage her condition. Due to being pregnant and the effects it may have on her unborn baby.[254]

1. When Dr Chew was asked whether he had sighted the 21 May 2014 ANZ letter when he wrote his 30 June 2014 letter, he could not recall having seen it or locate a copy in his electronic file.[255] Dr Chew also stated his electronic file did not have the 3 June 2014 ANZ letter.[256] The ANZ letters were not part of Dr Chew's electronic file, which was produced to the Tribunal pursuant to summons, and which Dr Chew referred to while giving evidence. It appears instead of responding to ANZ's questions, he responded to the questions Ms Bashour had drafted in her email of 24 June 2014.
2. I find it is likely Dr Chew did not see the two letters from ANZ. He did not answer the question querying how he made the assessment 'Katherine is finding that travelling into her workplace at the Docklands is also exacerbating her discomfort' where she was on annual leave for the period 15 April 2014 to 18 May 2014.[257] I note the email dated 24 June 2014 did not include question 4: based on the prognosis, how long any restriction that she not travel to the Docklands would need to be in place. This is a very clear question as the proposition is in the question itself and requires an answer about time frame only.
3. In my view it is also likely Dr Chew based his opinion on Ms Bashour's advice to him about her working from home arrangements and that she did not need to attend the workplace. In her email to Dr Chew Ms Bashour stated:

I have not been travelling to Docklands since 15 May and have been fulfilling my duties - essentially no there is no genuine requirement that I need to attend the Docklands. I haven't taken any time off work regarding this matter and I am fit for work, but as part of normal procedures, my employer has asked for these questions to be addressed.[258]

1. If Dr Chew had sighted the two original ANZ letters, it is possible the information in his letters may have been clearer and specified whether Ms Bashour was able to commute to the Docklands for work or whether she needed to work from home five days a week. ANZ asked the clearest possible question when requesting to know 'how long any restriction that she not travel to the Docklands world need to be in place'.
2. I note in Wildman, Baird J stated, '[w]hether it is reasonable for an employer to request an employee attend a medical examination will always be a question of fact, as will be the terms for undertaking such an examination.'[259]
3. Mr Zeman, the ANZ Human Resources employee who ultimately directed Ms Bashour to attend the IME, stated it was very unclear whether Ms Bashour was fit for work, as Dr Chew stated, when attendance at Docklands was a requirement of her role, for at least part of each week. Mr Zeman stated he sought this clarification because of the discrepancy between Dr Chew stating she was fit for work and that she should refrain from long distance travelling, and whether that meant she was unable to attend the workplace at all.
4. There are three issues raised regarding the information Ms Bashour provided to Dr Chew. Firstly, I find she did not show him the two letters from ANZ but drafted an email summarising ANZ's questions in her own words and omitting two. Secondly, in her email she stated she has not been travelling to Docklands since 15 May, when her last attendance at work was 11 April, although she travelled to Docklands to buy maternity wear on 20 April 2014. Thirdly, she has told Dr Chew there is no genuine requirement for work that she needs to attend the Docklands.
5. Dr Chew does not specifically state that Ms Bashour should work from home every day. Dr Chew does not specifically state that Ms Bashour should not commute to the Docklands. Against this is the context of the dispute regarding Ms Bashour working from home four days a week.
6. ANZ was not able to seek clarification to their questions from Dr Chew directly. I am satisfied there was an insufficiency in the medical evidence for ANZ to establish whether Ms Bashour was fit to perform her duties which included attending the workplace and how ANZ, as her employer, could support her to perform those duties safely.
7. I am not satisfied Ms Bashour has discharged her onus on the balance of probabilities to prove that adequate medical evidence had been provided as per paragraph [145] of her FAPOC.
8. In my view, on the balance of probabilities, it was reasonable for ANZ to seek further information from an independent expert to reconcile the notion of Ms Bashour being fit for her work duties but not able to travel to her workplace. Dr Chew's letters are imperfect and given the context of the dispute regarding the requirements of Ms Bashour's role, namely five days in the office per fortnight, there is a lack of clarity.
9. In oral submissions Ms Bashour referred to the 'futility' of the direction to attend the IME given the time left prior to her commencing parental leave, and that the direction to attend the IME was set up by ANZ as a 'trip mechanism' to secure her removal from the bank. This is a retrospective analysis of the timeline, ANZ originally requested further information from Dr Chew on 21 May 2014. I will consider this in my consideration of section 18 and whether ANZ discriminated by dismissing or otherwise terminating Ms Bashour's employment.
10. The power for ANZ to make the request to attend an IME is implied in contracts of employment to give effect to employer's occupational health and safety obligations. Given my findings regarding the insufficiency of the medical evidence available to ANZ it was a reasonable direction for an employer to an employee.
11. I now turn to consider unfavourable treatment.
12. Ms Bashour claims the direction to attend the IME in circumstances where adequate medical evidence had been provided constitutes unfavourable treatment based on her disability, pelvic instability.
13. Ms Bashour submits ANZ pursued her to obtain medical information beyond that which it genuinely needed and did so in a harassing and threatening manner: the information sought was not about the ways in which she might be assisted to work safely but was directed at '...obtaining medical support for the requirement that the Applicant attend the First Respondent's office at the Docklands.'[260] She submits the direction was not reasonable, but heavy handed and oppressive.
14. I have found Ms Bashour was required to work in the office five days a fortnight and the direction for further medical information by way of an IME was reasonable as there was an insufficiency of medical information. I have found there was an insufficiency of medical information about the extent of her pelvic instability and its impact on her ability to attend the office. Given the unfavourable treatment claimed is the direction to attend the IME in circumstances where adequate medical evidence has been provided, the factual basis of the alleged unfavourable treatment fails.
15. If I am wrong, I consider whether the direction to attend the IME constitutes unfavourable treatment.
16. Ms Bashour also submitted the letters from Mr Zeman contained the threat of disciplinary action and she had the belief the IME would involve an intimate examination.
17. Ms Bashour has conceded her reason for not attending the IME was because of recent blood results which made it risky for her to travel, not because of her fear of what the IME might entail.[261] Her email dated 11 July 2014 to Mr Zeman stated otherwise she was happy to attend. She did not state to Mr Zeman she was concerned about the intimate nature of the IME. In her letter of complaint dated 14 July 2014 addressed to Mr Zeman she denied stating the direction to attend the medical assessment was the distressing factor, however, did refer to a grounds of distress, including that she 'undergo an invasive gynaecological assessment for your viewing - and that I am to contact you should I want a copy of the report.'[262] At her Federal Court appearance on 7 August 2014 when she refers to the internal pelvic examination.
18. The evidence from Ms Bashour about her distress at the direction to attend the IME is equivocal as on 11 July 2014 her reason for not attending is because of blood test results, and she states otherwise she is happy to attend. The evidence of her concerns evolves over time. Assessing whether the direction constituted unfavourable treatment, and the impact of the direction subjectively, I take into account that at the time the direction is made she gives a different reason for not attending. I give greater consideration to whether the direction constituted a detriment (which has a different test) in Ms Bashour's victimisation claim.
19. The letter dated 4 July 2014 from Mr Zeman requiring attendance at the appointment with Dr White stated, '...you may be subject to disciplinary action'.[263] The letter dated 10 July 2014 did not contain a reference to disciplinary action. I note in Kuyken v Lay, the email containing the threat of disciplinary action was found to constitute unfavourable treatment. Unfavourable treatment is a subjective test, it requires an analysis of the impact of treatment on the person complaining of it. As per Amponsen, subjective factors do not mean that objective reality is not important.
20. In her email to Ms Edelman dated 7 July 2014, Ms Bashour describes, since receiving Mr Zeman's letter dated 4 July 2014, her distress and not being able to sleep.[264] I accept Ms Bashour's subjective response to the direction to attend the IME noting the possibility of disciplinary proceedings in the letter dated 4 July 2014 could constitute unfavourable treatment. However, the reference to the possibility of disciplinary action may also constitute the provision of natural justice requirements so that an employee is aware of the potential consequences of non-compliance with an employer's reasonable direction.
21. Even if Ms Bashour could establish the direction constituted unfavourable treatment, she must show ANZ made the direction to attend the IME was because of her attribute.

1. I turn to consider whether the direction to attend the IME was because of Ms Bashour's attribute.
2. Ms Bashour submits her pelvic instability was '...at least a substantial reason, if not the only reason...'[265] for the direction to attend Dr White's appointment.
3. ANZ denies the causation element of Ms Bashour's claim. ANZ submits:

The causation / knowledge element of the test for direct discrimination requires careful consideration of the detail (or lack thereof) in the medical evidence and other information provided by the Applicant and the nature of her responses to the bank's requests. The evidence justifies an inference that the applicant was unwilling to co-operate and unwilling to provide the information which was being sought on a reasonable basis in order to enable ANZ to make an informed decision about the ways in which she might be assisted to work safely.[266]

1. If the direction to attend the IME was unfavourable treatment, consideration of causation requires an assessment of whether the ANZ's direction was 'because of' Ms Bashour's attribute, pelvic instability.
2. The question of 'why' has been widely accepted as the test for causation in direct discrimination complaints. Why was the action taken? Equally, the 'true basis or 'real reason' is also relied on. In Abela v State of Victoria,[267] Tracey J stated '[t]he Court is...required to determine, as a question of fact, why (in the sense of the "real reason" or "true basis") the impugned conduct occurred.'[268]
3. In Kapoor v Monash University,[269] the Court of Appeal considered causation. Ms Kapoor claimed she was discriminated against by her employer on the grounds of being 'socially reserved' which was a characteristic of her race or religion. The Court of Appeal held her contract was not renewed because she was unsuitable for the role because she was not capable of doing the job. The Court of Appeal noted a cause of her unsuitability was her reserved nature, but this was not the reason for the action so it did not amount to discrimination. Causation was not established.
4. In this case, ANZ was aware of Ms Bashour's pelvic instability. In his statement Mr Zeman stated '[t]he purpose of the assessment was to understand the nature of her condition, any necessary restrictions it placed upon her work, and how ANZ could accommodate those restrictions in a way that was consistent with the continued performance of her role.'[270] This was not disturbed in cross-examination. The reason for the direction was included in Mr Zeman's letter to Ms Bashour dated 4 July 2014 stating '[t]he purpose of the assessment is to provide ANZ clarity in relation to these matters mentioned above and to determine whether you are fit to perform the duties of your role and are able to do so without placing yourself or others at risk.'[271] It was also clearly set out in his letter to Dr White. As well as seeking diagnosis (noting the diagnosis of pelvic instability is not disputed), summary of the effects of the condition and its prognosis, the letter seeks to ascertain whether Ms Bashour can travel to and from her workplace and whether measures detailed could enable her to safely work from the office five days a fortnight.[272]
5. On this evidence it appears the true basis for the direction was for ANZ to determine how Ms Bashour's condition of pelvic instability interacted with or impacted on her work requirements which required her to attend the office at least five days a fortnight. This is not based on a surmise but on the admissible evidence in the case.
6. The requirement to attend the workplace was not a recent invention by ANZ. Ms Bashour had been requested in writing to attend the workplace at least five days a fortnight from November 2013. This was not a request for an IME to determine whether Ms Bashour had pelvic instability or was fit to return to work, but whether her pelvic instability was to such an extent that it prevented her from attending the Docklands, and how it was to be managed in the context of her duties which required she attend the workplace at least five days per fortnight.
7. I am satisfied Ms Bashour's attribute of pelvic instability was a cause of why the IME was sought but it was not the substantial cause. Pelvic instability was conceded by ANZ. The 'real reason' or 'true basis' was to assist ANZ ascertain how the extent and effect of Ms Bashour's pelvic instability inhibited her ability to attend at the Docklands office and how ANZ could accommodate any required restrictions. It was not 'because of' that attribute.
8. I find the claim against ANZ for direct discrimination by the direction to attend an IME where there is sufficient medical evidence is not established on the balance of probabilities.

Section 18 Area of prohibited discrimination

1. Section 18 prohibits discriminatory conduct by an employer against existing employees and provides:

An employer must not discriminate against an employee -

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment; or

(b) by dismissing the employee or otherwise terminating his or her employment; or

(c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or

(d) by subjecting the employee to any other detriment.

1. At paragraph [146.1] and [147] Ms Bashour claims:

The Direction to attend the Medical Examination and the repeated requests for fitness for work certificates:

(a) were part of a course of conduct engaged in by ANZ which was cumulatively inimical to the continuation of the Applicant's employment;

(b) further, or in the alternative, constituted Repudiation;

(c) brought about the termination of the Applicant's employment on 1 October 2014.

In the premises, as pleaded in paragraphs 145 to 146.1 above, ANZ discriminated against the Applicant on the ground of her disability and/or purported disability by:

(a) dismissing her or otherwise terminating her employment; and/or

(b) subjecting her to a detriment;

in contravention of section 18 of the EO Act.

The Respondents deny the allegations in paragraph 146.1, and say further that the Applicant's employment was not was not terminated, and she resigned from her employment on 1 October 2014.

The Respondents deny the allegations in paragraph [147] and say further that the Applicant's employment was not terminated, and she resigned from her employment on 1 October 2014.[273]

1. In Ms Bashour's oral opening submissions, it was submitted the three requests for a fitness for work certificate were part of a process whereby the ANZ had her ear-marked for departure.[274] In closing oral submissions Ms Bashour has also submitted the direction to attend the IME was a 'trip mechanism' to remove her from employment.[275] It was submitted by Ms Bashour ANZ opted to commence disciplinary action rather than offering a later IME appointment, which was available, and that there was no '...urgency from an operational perspective other that the First Respondent's desire to have the Applicant leave her employment.'[276] Ms Bashour relies on inferences for this conclusion. Given the direct evidence of Ms Edelman and Mr Zeman raising a rational explanation for both the three requests and IME direction, I find this evidence carries more probative weight than the inferences sought to be drawn.
2. Repudiation is a contractual term. The question is whether there was unfavourable treatment that caused the termination of Ms Bashour's employment. The discriminatory conduct relied on has not been proven. There was no unfavourable treatment by way of a course of conduct or that either brought the contract to an end or required Ms Bashour to resign nor subjected her to any other detriment.
3. I have not found direct discrimination proven, therefore section 18 has not been contravened by ANZ.

1. This section considers Ms Bashour's four claims that as an employee with disabilities, the respondents failed to make reasonable adjustments needed to allow her to perform the genuine and reasonable requirements of her employment. Ms Bashour's four claims that ANZ failed to make reasonable adjustments pursuant to section 20 related to her disability attributes are;
   1. Failing to allow her to work from home for the duration of her pelvic instability condition ('working from home adjustment');
   2. Failing to postpone the date of the independent medical assessment;
   3. Failing to postpone the date for compliance with the disciplinary letter; and
   4. Failing to reduce workplace conflict.
2. ANZ defends the four claims for failing to make reasonable adjustments on two grounds. Firstly, there is insufficient evidence to support a finding that the four adjustments were required, and secondly, if it is found any of the adjustments were required, ANZ did not fail to make the adjustments.

1. Section 7(1)(b) provides that the meaning of discrimination includes a contravention of section 20.
2. Section 20 provides:

(1) This section applies to a person with a disability who -

(a) is offered employment or is an employee; and

(b) requires adjustments in order to perform the genuine and reasonable requirements of the employment.

(2) The employer must make reasonable adjustments unless the person or employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made.

Example

An employer may be able to make reasonable adjustments for a person or employee with a disability by -

• providing a ramp for access to the workplace or a particular software package for computers;
• modifying work instructions or reference manuals;
• allowing the person or employee to be absent during work hours for rehabilitation, assessment or treatment;
• allowing the person or employee to take breaks more frequently.

(3) In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, including -

(a) the person's or employee's circumstances, including the nature of his or her disability; and

(b) the nature of the employee's role or the role that is being offered; and

(c) the nature of the adjustment required to accommodate the person's or employee's disability; and

(d) the financial circumstances of the employer; and

(e) the size and nature of the workplace and the employer's business; and

(f) the effect on the workplace and the employer's business of making the adjustment including -

(i) the financial impact of doing so;

(ii) the number of persons who would benefit from or be disadvantaged by doing so;

(iii) the impact on efficiency and productivity and, if applicable, on customer service of doing so; and

(g) the consequences for the employer of making the adjustment; and

(h) the consequences for the person or employee of not making the adjustment; and

(i) any relevant action plan made under Part 3 of the Disability Discrimination Act 1992 of the Commonwealth; and

(j) if the employer is a public sector body within the meaning of section 38 of the Disability Act 2006, any relevant Disability Action Plan made under that section.

(4) For the purposes of subsection (2), in determining whether or not the person or employee could or can adequately perform the genuine and reasonable requirements of the employment, all the relevant facts and circumstances must be considered, including -

(a) the person's or employee's training, qualifications and experience;

(b) the person's or employee's current performance in the employment, if applicable.

...

1. Section 20(5) and (6) provide circumstances where an employer is not required to make an adjustment under (2) which are not relevant to this case.

1. Ms Bashour bears the onus of proving ANZ was in breach of its obligation to provide reasonable adjustments. ANZ denies that reasonable adjustments were not made. Unlike indirect discrimination under section 9(2) where the burden of proof is imposed on the person imposing the requirement, condition or practice, section 20 has no equivalent provision, and I do not accept there is reverse onus of proof.

1. The EO Act imposes a positive obligation on employers to make reasonable adjustments for people with a disability. Under section 20, a person who needs reasonable adjustments to perform the genuine and reasonable requirements of employment, requires that an employer make reasonable adjustments unless the person could not perform the genuine and reasonable requirements of the employment even after the adjustments are made.[277]
2. 'Reasonable adjustment' is not defined. In the context of employment, it means an adjustment the employee with a disability 'requires in order to perform the genuine and reasonable requirements of the employment'. Determining whether an adjustment is reasonable is assessed in light of the prescribed factors listed in section 20(3).
3. Adjustments may vary widely and depend upon the complainant. In considering the Federal Disability Discrimination Act 1992 (Cth) in Watts v Australian Postal Corporation,[278] Mortimer J stated adjustments are made for the person and '[t]he adjustment is to be enabling and facilitative.'[279] Adjustment is given its ordinary meaning of alteration or modification.
4. Section 20(2) of the EO Act refers to the genuine and reasonable requirements of the employment. In Davies v State of Victoria (Victoria Police)[280] when considering an earlier version of section 20 of the EO Act[281] it was held:

The requirements of the employment refers to what the job or position requires to be done, as well as what is necessary to do those duties. The term covers the whole range of these requirements, and not just the 'essential' ones...They must be genuine requirements. An employer cannot invent requirements which are not truly requirements of the employment. They must be reasonable requirements.

To determine what are the genuine and reasonable requirements of the employment, we should look at all the circumstances surrounding the employment, including any contract of employment, any statutory functions, and any organisational or operational requirements of the employment.[282]

1. In Dziurbas v Mondelez Australia Pty Ltd[283] Senior Member Dea noted the reference to 'adequately' in section 20(2) and held that performing the genuine and reasonable requirements of employment does not mean performing the requirements of employment 'perfectly'.[284] In that case it was held the employer did not properly investigate the applicant's circumstances and failed to consider whether he could have performed his role with reasonable adjustments 'adequately'. The employer was aware that adjustments would be required and '...none were considered in the light of what it understood to be the genuine and reasonable requirements of Mr Dziurbas employment.'[285]
2. In Davies v Victoria Police it was also held:

...the question of whether a person is able adequately to perform the genuine and reasonable requirements of the employment must be judged on those requirements as a whole. A person may still be able to perform adequately the requirements as a whole, even though he or she is unable to perform, or unable adequately to perform, a particular requirement.[286]

1. Section 20(3) provides guidance on the factors to be considered in determining whether an adjustment is reasonable.
2. In Muller v Toll Transport Pty Ltd (2)[287], when considering section 20(3), Senior Member Megay stated:

The concept of 'reasonable adjustment' does not mean an employer must simply comply with an employee's demands. It surely must be a product of proper consultation by parties armed with appropriate (in this case) medical information and advice and appropriate knowledge of the genuine and reasonable requirements of the particular job. That much is clear from s. 20(3) (a), (b) and (c) of the Act. It is not for the respondent to work out what is required in an information vacuum. There must be some initiative from the worker. The comprehensive requirements of s 20(3) make it clear considerable information is required in determining reasonability - 'all relevant facts and circumstances' must be considered. That obviously requires a proper understanding of the requirements of an employee (in this case a courier driver) having regard to the nature and specifications of his employment and having regard to the nature and difficulties of his disability. And the latter is what is missing from this case. It is unclear to the Tribunal why appropriate medical evidence about the applicant's condition was not obtained.[288]

1. While in the Federal context, in Tropoulos v Journey Lawyers Pty Ltd[289] Collier J held that '...practically, the alleged discriminator must be given some knowledge of the nature of the disability and the needs of the disabled person in order to make reasonable adjustments to their conditions.'[290]

First alleged failure - working from home adjustment

1. The relevant attribute claimed is pelvic instability.
2. Paragraph [130] of Ms Bashour's FAPOC states:

At all material times, the Applicant suffered from a disability within the meaning of section 4 of the EO Act in that she suffered a malfunction of a part of the body.

Particulars

Between in or around April 2014 and in or around August 2014, the Applicant suffered from pelvic instability.

1. On the specifics on this claim, it is claimed:
   1. As a result of her pelvic instability, the Applicant could not walk or travel long distances, and, accordingly could not travel to the Docklands offices of ANZ from in or around 15 May 2014.
   2. As a result of her pelvic instability, the Applicant needed to work from home for the duration of her pregnancy.
   3. By acting as pleaded in paragraphs 77 to 102 in failing to allow the Applicant to work from home for the remainder of her pregnancy, ANZ failed to make reasonable adjustments for her disability to allow the Applicant to perform her duties safely, that is, from home.
   4. By acting as pleaded above, ANZ contravened section 20 of the EO Act.
2. Paragraphs [77] to [102] of Ms Bashour's FAPOC details events commencing 21 May 2014, and particularises correspondence and emails from and between Ms Edelman, Ms Bashour, Ms Babani, Mr Zeman and Mr Brian Bashour about her pelvic instability up until 4 August 2014.

130. The Respondents deny the allegations in paragraph 130.

131. The Respondents deny the allegations in paragraph 131.

132. The Respondents deny the allegations in paragraph 132.

133. The Respondents deny the allegations in paragraph 133 and say further that:

133.1 ANZ had, between April 2013 and March 2014, offered to the Applicant a number of flexible working arrangements and had made and offered to the Applicant a number of reasonable adjustments and sought further medical information about her condition: the Respondents refer to and repeat paragraphs 14, 22, 33, 52 and 61 above; and

133.3 (sic) The "adjustment" which the Applicant alleges was required to allow her to perform her duties "safely" (namely working from home at all times) did not constitute a "reasonable adjustment" in all the circumstances within the meaning of section 20 of the Equal Opportunity Act 2010 (Vic) (EOA), and the Respondents refer to and repeat paragraph 29 above.

134. The Respondents deny the allegations in paragraph 134.[291]

1. Paragraph [133.1] of the FAD refers to the following paragraphs(summarised):

[14] refers to the ANZ Flexible Work Arrangements Policy and Ms Bashour's arrangement from April 2013 with Mr Harman.

[22] contains ANZ's pleadings regarding the meeting and discussion between Ms Bashour and Mr Shaw on 26 September 2013.

[33] concerns the contents of Mr Shaw's emails dated 18 November and 22 November 2013.

[52] details the 20 January 2014 and 4 March 2014 proposals by ANZ to conduct a flexible work arrangement assessment.

[61] details that prior to March 2014 there was a 'temporary' four day a week arrangement agreed to by ANZ by email dated 4 March 2014 from Ms Edelman whilst the flexible work arrangement assessment was underway. On 20 March 2014 the five day per fortnight arrangement was offered to Ms Bashour. Paragraph 61 details Ms Bashour's working from home arrangements from April 2013 and includes details of all her leave taken during that period up until 1 August 2014 when she commenced parental leave

[133.3] refers to paragraph [29] which states:

The Respondents deny the allegations in paragraph 29 and say further that a flexible work arrangement pursuant to which the Applicant worked four days a week from home had not been agreed to by Mr Shaw, and would not have been agreed to by Mr Shaw, as it would have been impractical on business grounds, detrimental to the business of ANZ, and incapable of meeting the business' needs.

1. Ms Bashour noted under section 7, a contravention of section 20 constitutes discrimination without reference to the tests for direct or indirect discrimination. It does not require a finding of unfavourable treatment.[292]
2. Ms Bashour submitted she required the ability to work from home from 19 May 2014 until the commencement of the maternity leave at the end of August 2014, a period of approximately three months. She required this adjustment because her pelvic instability, a disability she suffered as a result of her pregnancy, restricted her mobility, so she was unable to travel from home to the Docklands office.[293]
3. Ms Bashour submits she required this adjustment to perform the genuine and reasonable requirements of her employment from 19 May 2014 until she commenced maternity leave in circumstances where she was already working from home four days a week and informed ANZ of her need for this adjustment and the medical basis it.[294]
4. Ms Bashour submitted the case law supports the position that to enliven an obligation to make adjustments, there needs to be a call for action, meaning an employer must be on notice that adjustments are required.[295]
5. Noting some cases place weight on the employee to identify the adjustments required by the employer,[296] Ms Bashour submitted the process of attaining and delivering reasonable adjustments is not the product of unilateral decision making, but the employer might be expected to engage in a process of genuine consultation about whether it could accommodate adjustments, whether they are reasonable and whether they would enable the applicant to adequately perform the genuine and reasonable requirements of the employment.[297]
6. The submissions refer to the 'genuine and reasonable requirements of the applicant's employment' and that they must be genuine requirements, and cannot be invented if not truly requirements of the employment. Ms Bashour submitted Ms Edelman and Mr Zeman '...altered the description of the inherent requirements...' of her role in the letter sent to Dr White requesting the independent medical assessment.[298] She disputes the 'genuine and reasonable requirements of employment' required her to have 'face to face' or a physical presence at 833 Collins Street, Docklands.
7. Paragraphs [78] - [85] of her opening submissions detail the reasons why Ms Bashour submitted her role did not require her to be physically in the office.
8. Ms Bashour submits at the time of seeking the adjustment to work five days per week from home, she was working four days per week from home pursuant to the variation to her contract. She relied on a medical report of Dr Chew dated 15 May 2014, emailed to Ms Edelman and Mr Shaw on Sunday 18 May 2014, with the adjustment to begin the next day on Monday 19 May 2014. Ms Bashour submits an additional day at home for the remainder of her pregnancy would appear to be an adjustment that could be accommodated without difficulty.[299]
9. Ms Bashour submitted '[t]he Respondents neither made the required adjustment, nor engaged in a reasoned approach to proper consultation.'[300] The individual factors in section 20(3)(a) - (i) are also addressed in her opening submissions.[301]
10. In closing submissions, to support her submission that ANZ did not make the required adjustment or engage in a reasonable approach to proper consultation concerning the adjustment, Ms Bashour refers in to the events that followed her 18 May 2014 email to Mr Shaw and Ms Edelman and makes detailed submissions on how the Tribunal should consider these events and evidence.[302] I have considered all of these submissions in my analysis of the evidence for this claim. In summary, Ms Bashour submits:
    • By 4 July 2014 ANZ had, by way of Dr Chew's three reports, sufficient evidence to show that the restrictions were made necessary by the pelvic instability from which the Applicant suffered, which would worsen as the pregnancy progressed before resolving completely following the birth of her child.
    • The process of consultation ANZ was embarking on was not a genuine consultation to determine what adjustments she needed especially when viewed in the context of all the events occurring in her Fair Work proceedings; and
    • ANZ did not make the adjustment to allow her to work from home.
11. Ms Bashour submitted the extent to which she was required in the office for her role was a current dispute between her and ANZ. However, given she maintained her 'Box 9' performance rating (while working 4 days from home), Ms Bashour submits it could not be reasonably maintained her attendance at the office during the final weeks of her pregnancy was essential to her role.[303] Ms Bashour also notes the questions ANZ directed to Dr Chew and Dr White were directed at whether she could work in the office and ANZ did not put forward any adjustments aimed at addressing the need for assistance with her mobility.[304]
12. In closing submissions in reply, Ms Bashour submits the authorities generally agree under section 20, that once the employee has raised the need for an adjustment, the next step is that the employer engage in proper reasoned consultation with the employee about the adjustments, which imposes obligations on the employer.[305]
13. With respect to all four adjustments, Ms Bashour submitted the respondents not only failed to make adjustments but failed at the preliminary stage by not engaging in proper reasoned consultation.[306]

1. In opening submissions, ANZ submitted in assessing this claim, the Tribunal needs to firstly determine whether from April to August 2014 Ms Bashour did need to work from home on a full-time basis because of her pelvic instability.[307]
2. ANZ submitted the evidence regarding Ms Bashour's pelvic instability, being the letters from Dr Chew, when viewed in the context of Ms Bashour's capacity to travel to the Melbourne CBD for her own purposes do not support a finding that she 'could not travel to the ANZ's Docklands offices for work' and 'needed to work from home for the duration of her pregnancy'.[308]
3. ANZ further submitted that if it is found Ms Bashour did need to work from home, the Tribunal must then decide whether the ANZ failed to make a reasonable adjustment for the applicant's pelvic instability.[309]
4. Referencing Muller, ANZ submitted the positive duty in section 20 does not require an employer to simply comply with the employee's demands, stating that '[t]he provision of a reasonable adjustment is the product of proper consultation by parties armed with appropriate medical advice and knowledge of the genuine and reasonable requirements of the employment.'[310]
5. ANZ submitted Ms Bashour must prove each adjustment was required by her to perform the genuine and reasonable requirements of her employment, that the adjustment was reasonable having regard to all the relevant facts and circumstances, and that ANZ failed to provide the adjustment.
6. In support of the submission the adjustment was not required, in closing ANZ submitted (summarised):
   • The Tribunal should not find Ms Bashour required or needed for medical reasons the adjustment that she work from home on a full-time basis because of pelvic instability;
   • That, as Ms Bashour did not provide Dr Chew with an accurate history of her travel to the Docklands, it is unsafe to rely on his assessments on 15 May 2014 and 30 June 2014.
   • That based on the information provided by Ms Bashour to Dr Chew, it cannot be assumed his letters are accurate in their description of her capacity to travel to Docklands.[311]
7. If the Tribunal does find by reason of her pelvic instability Ms Bashour was medically required to work from home, ANZ submits it did not fail to make a reasonable adjustment because:
   • On 21 May 2014 and 3 June 2014 ANZ asked Ms Bashour to provide, and/or asked for consent to contact Dr Chew to obtain, information regarding whether there were any supports or adjustments ANZ could make for her to be able to safely perform her role.
   • The evidence suggests Dr Chew did not see those two letters because they were not scanned in his electronic file, Dr Chew did not know Ms Bashour had not attended the Docklands for work whilst on annual leave between 15 April to 18 May 2014, nor that she had attended court proceedings in the CBD on 26 May, 6 June and 18 June 2014. It is unclear what he meant by Ms Bashour requiring assistance with her mobility, although he was aware she did not require crutches or a walking frame or walking device.
   • It was Ms Bashour's preference to work from home full time and 'ANZ offered a number of compromise positions...', albeit on the grounds of her caring responsibilities since her return from parental leave in April 2013.
   • ANZ did not have appropriate medical information and advice about adjustments required for Ms Bashour. The reason for this was that Ms Bashour had curated the information to Dr Chew so he did not respond to the questions ANZ had asked. Scenarios of more specific medical recommendations were put to Mr Zeman and Ms Edelman in evidence and if appraised of the factual scenario put, they would have agreed it was a reasonable that Ms Bashour work from home full time.[312]

1. On 14 April 2014, Ms Bashour had a conversation with Ms Edelman regarding needing annual leave, then confirmed in an email advising, amongst other things, of '...an obstetrics related examination.'[313] She also noted she had to take annual leave to attend a hearing for her Federal Court claim which had been called at short notice.
2. Ms Edelman stated that was how she found out Ms Bashour was pregnant.[314]
3. In her statement Ms Bashour noted in early April 2014 she had reported her lower back and pelvic pain to Dr Chew who had diagnosed her with pelvic instability.[315] As she was working one day a week at Docklands she decided to '...bear the pain for that one day per week...'.[316]
4. Ms Bashour described her symptoms at this time as:

...my back and pelvic pain was now extreme. I was unable to drive, travel or walk long distances without experiencing extreme pain while doing so, and ongoing pain after doing so, including extreme throbbing and aches. I was finding that travelling in a vehicle for more than 5 minutes was exacerbating my discomfort. While I had been experiencing such symptoms since March 2014 on the days I travelled into the office (due to the length of the travel time), the discomfort increased into extreme pain as my pregnancy progressed.[317]

1. On 15 May 2014, Dr Chew provided Ms Bashour with another medical report which Ms Bashour states noted '...that travelling was exacerbating my condition and that it was his recommendation that I not travel or walk long distances.'[318]
2. On 18 May 2014, Ms Bashour emailed this report to Mr Shaw and Ms Edelman, stating in the body of the email, 'In light of the recent medical advice, I will not be able to commute into Docklands between now and maternity leave. This is a temporary issue that will be resolved once I give birth.'[319]
3. Ms Bashour's evidence is that '[f]rom on or about 19 May 2014, I began to work from home on a full-time basis.'[320] As Ms Bashour had taken a period of annual leave prior, it appears the last day Ms Bashour attended the ANZ Docklands office was Friday 11 April 2014.[321]
4. Ms Bashour noted she did not receive a response to her announcement that she would be working from home full time and 'I continued to perform my role while working from home fulltime, and no one questioned my whereabouts.'[322]
5. On 21 May 2014, Ms Edelman sent Ms Bashour a letter seeking further clarification from Dr Chew on the workplace restrictions Ms Bashour would like ANZ to accommodate by 29 May 2014.[323]
6. As she was unable to get an appointment with Dr Chew before that date, despite making attempts, Ms Bashour provided a response to Ms Edelman pointing out the relevant sections of the reports of Dr Chew.[324]
7. On 3 June 2014, Ms Edelman wrote a letter to Ms Bashour noting '...your comments in the absence of a medical opinion are not sufficient...'[325] and Ms Bashour stated ANZ '...issued another direction requiring me to obtain further information from my obstetrician regarding my pelvic instability.'[326] Further, the letter also sought Dr Chew's opinion about some alternative workplace restrictions, such as a designated carpark and anchored desk.
8. Ms Bashour detailed that at around 3 June 2014 she had urgent compliance work matters, court proceedings and family commitments and stated '...my pelvic pain was intensifying and I was unable to secure an appointment with Dr Chew.'[327]
9. On 19 June 2014, Ms Bashour made '...a formal complaint to Ms Babani and Ms Evans regarding the reasonableness of the request to obtain further medical evidence by Ms Edelman...'.[328]
10. She stated, '[a]t this stage, I was physically suffering and in great fear for the safety of my unborn child. Specifically, my pelvic and back pain was extreme and radiating down my thighs and legs, and it was extremely difficult to move around.'[329]
11. On 20 June 2014, Ms Babani emailed Ms Bashour that her email had been referred to an Employee Relations Advisor who will be in touch shortly.[330]
12. On 23 June 2014, Mr Zeman emailed Ms Bashour advising her email had been referred to him for review.[331] Mr Zeman advised that the approach taken by Ms Edelman was appropriate and she was asked to comply by 1 July 2014.[332]
13. On 30 June 2014, Ms Bashour's husband took her to an appointment with Dr Chew, who prepared a letter dated 30 June 2014.[333] Ms Bashour emailed this letter to Mr Zeman that night.[334]
14. On 4 July 2014, Mr Zeman wrote to Ms Bashour that, after reviewing Dr Chew's report, ANZ remained in a position whether they needed clarity, and an appointment for a medical examination with Dr White had been scheduled for 15 July 2014, noting she may be subject to disciplinary action if she did not attend.[335]
15. On 7 July 2014, Ms Bashour emailed Ms Edelman stating that since receiving Mr Zeman's letter she was quite distressed by it and had not able to sleep, was suffering from a tremendous amount of pain and discomfort and needed to see a medical practitioner.[336]
16. On 7 July 2014, Ms Bashour's father took her to see Dr Crimmins who gave her a medical certificate for one week from 7 to 11 July 2014, citing she had a 'medical condition'. Ms Bashour's father emailed the medical certificate to Ms Edelman.[337]
17. On 8 and 10 July 2014, Mr Zeman emailed Ms Bashour in response to her email of 7 July 2014 to Ms Edelman and asked her to contact him to discuss her concerns about his letter.[338] Ms Bashour did not reply to either email.
18. On 10 July 2014, Mr Zeman emailed Ms Bashour a letter stating that the medical appointment was still scheduled for 15 July 2014, noting she was required to attend if still unfit for work.[339]
19. On 11 July 2014, Ms Bashour emailed Mr Zeman stating she was happy to attend the medical assessment but that she had recent blood results that made it '...very risky for me to travel.'[340]
20. In my consideration of Ms Bashour's work duties earlier in this judgement, I found Ms Bashour's role required her to be at the workplace at least five days a fortnight. I now consider the phrase 'genuine and reasonable requirement of the employment' in this legislative context and whether ANZ failed to make the working from home adjustment to facilitate the genuine and reasonable requirements of the employment.
21. I have previously referred to Davies v Victoria Police at [408] and note: 'A person may still be able to perform adequately the requirements as a whole, even though he or she is unable to perform, or unable adequately to perform, a particular requirement'.[341]
22. Ms Bashour gave detailed evidence and made submissions regarding why she was not required to be physically in the office and, particularly from 19 May 2014 until she went on parental leave, why she could fulfill the requirements of her employment working permanently from home.
23. Although I have found it was requirement of Ms Bashour's duties that she be in the office at least five days a fortnight, I note the reference in Davies v Victoria Police that a person may be able to perform adequately the 'requirements as a whole', even though they are unable to perform a particular requirement.
24. In my view that is the situation here. Although it was a requirement of her role to be present in the office at least five days a fortnight, taking all other factors into account, including the nature of the adjustment required to accommodate her disability and the short timeframe proposed, I find Ms Bashour could adequately, albeit not perfectly, perform the genuine and reasonable requirements of her role working from home full time given the short time frame.
25. I now consider whether the adjustment was required and whether ANZ failed to make the adjustment.
26. ANZ submits firstly, under section 20(1)(b), Ms Bashour did not 'require' the adjustment to work from home full time, and secondly, it did not fail to make the reasonable adjustment.
27. Ms Bashour informed ANZ on 18 May 2014 that she would be working from home full time until she went on parental leave. In support of this, she provided the 15 May 2014 letter from Dr Chew. On her own evidence, she did not go back to work at the ANZ office following this email.[342]
28. In this case Ms Bashour presented her requirement to work from home full time, not as a proposal, but as a statement. In her email dated 18 May 2014 she stated, 'In light of the recent medical advice, I will not be able to commute into Docklands between now and maternity leave. This is a temporary issue that will be resolved once I give birth.'[343] Ms Bashour has submitted ANZ failed at a preliminary stage by not engaging in a proper reasoned consultation about adjustments.
29. The evidence suggests ANZ attempted to engage in a 'consultation' as per the decision in Muller by seeking more information from Dr Chew about her condition including its effects, the prognosis and any reasonable adjustments that would enable Ms Bashour to safely perform her role.
30. This process appears to have had the twofold or combined purpose to determine first, whether the adjustment was required, and then what would be reasonable. The extent or effect of Ms Bashour's pelvic instability was disputed. When Ms Bashour answered this request for information herself, rather than Dr Chew, Ms Edelman followed up with the letter of 4 June 2014, asking the same questions and also proposing some adjustments.
31. Dr Chew's letter dated 30 June 2014 equally did not specify Ms Bashour needed to work at home five days a week or that she could not travel to the Docklands. It did say she needs to refrain from travelling long distances and that she was 'fit for work.'
32. Dr Chew's reports firstly, did not specify the severity of Ms Bashour's pelvic instability, and secondly, never specifically said she was advised to work from home five days per week or that she could not travel to the Docklands. Dr Chew's letters were not clear from ANZ's perspective particularly in the context that Ms Bashour's managers had been attempting to get her to attend the workplace more frequently, at least five days per fortnight, since November 2013.
33. If the adjustment was required, I find ANZ did not refuse or fail to make the reasonable adjustment. The evidence of the process detailed above reveals ANZ was seeking further information as part of the 'consultation' process between the parties to establish if they were required and as the offer of adjustments suggests, what would be reasonable. The process was still ongoing. Whilst the process was ongoing Ms Bashour had the informal benefit of the adjustment, as she worked from home five days a week from her last attendance at the ANZ office on 11 April 2014 until her maternity leave commenced on 1 August 2014.
34. For this reason I am not satisfied on the balance of probabilities ANZ failed to make a reasonable adjustment for her disability to allow Ms Bashour to perform her duties safely, that is, from home, in contravention of section 20 of the EO Act.

Second alleged failure - postponement of the medical assessment

135 Further or in the alternative, as a result of her pelvic instability

and/or a low blood count and anaemia, and/or trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms, and /or pregnancy related or induced light-headedness, the Applicant could not comply with the Direction to Attend the Medical Assessment; and required that the Medical Assessment be postponed until such time that she was physically and/or psychologically able to attend.

136 By acting as pleaded in paragraphs 90, 92, 96, 98 and 102 in

failing to postpone the Medical Assessment until such time that the Applicant was no longer on sick leave and/or was physically and/or psychologically able to attend, ANZ failed to make reasonable adjustments for her disability, such that the Applicant was not able to perform the genuine and reasonable requirements of her role, namely follow the directions of her employer by attending the Medical Assessment.

137 In the premises, ANZ contravened section 20 of the EO Act.

135. The Respondents deny the allegations in paragraph 135.

136. The Respondents:

136.1 Deny the allegations in paragraph 136;

136.2 Refer to and repeat paragraph 133 above; and

136.3 Say further that the 'adjustment' which the Applicant

alleges was required to enable the Applicant to follow the directions of her employer to attend the independent medical assessment (namely to postpone the medical assessment until she was no longer on sick leave or physically able to attend) did not constitute a 'reasonable adjustment' in all the circumstances within the meaning of section 20 of the EOA.

137. The Respondents deny the allegation in paragraph 137.

1. In opening submissions Ms Bashour submits the second adjustment she required was the postponement of the appointment with Dr White until she was able to attend. She notes at this time she had made claims against Mr Zeman in her Fair Work Federal Court proceedings. [344]
2. In addition to pelvic instability, she suffered from disability in the form of migraines from January 2014, low blood count and anaemia from July and early August 2014, trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma from 2014 and pregnancy related or induced light headedness from around July until August 2014.[345]
3. The respondents had Dr Chew's letters dated 15 May and 30 June 2014, and then directed Ms Bashour to attend the appointment on 15 July 2014 with Dr White. The direction was by Mr Zeman 'in the context of a threat of disciplinary action.'[346]
4. Ms Bashour submits the correspondence detailed in the FAPOC [87] to [96] 'clearly indicates' she was unable to attend the medical appointment and informed ANZ of this. She was willing to attend a re-scheduled appointment. Her physical symptoms, detailed in her 2017 statement, included chronic dizziness, severe back pain and pelvic pain, severe anaemia and high iron deficiency. She was stressed and staying with her parents for help. As a result of the anaemia, she was very faint and fearful she would fall or faint in a taxi. She emailed Mr Zeman to let him know recent blood results made it too risky for her to travel at that time.[347]
5. Ms Bashour submitted she also was suffering from a trauma induced major depressive disorder and light headedness which impeded her ability to attend the appointment. She submits this is supported by the expert report from Dr Jonathan Philips dated 28 August 2019. In this report Dr Philips stated there was no doubt that Ms Bashour's various psychological symptoms would have made it difficult or impossible to attend and being directed to attend against the advice of her treating specialist would have led to a worsening of her pattern of symptoms.[348]
6. This conflict was also referred to in the report by Dr De Pino dated 13 September 2019, that she 'experienced perceived threats to the physical integrity of her unborn child and at certain stages she was fearful that her unborn baby would die as a result of the deterioration in her own health and the unknowns of what the independent medical examination would involve.'[349]
7. Ms Bashour submitted ANZ remained intransigent regarding the timing of the appointment and did not make the required adjustment, despite another appointment being booked with Dr White on 5 August 2014.[350]
8. She submitted she was not told prior to 8 August 2014 that the medical assessment would not involve a pelvic examination.[351] Ms Bashour submits, relying upon Professor O'Connor's opinion, it was reasonable for her to assume Dr White would perform a vaginal examination.[352]
9. In closing submissions, Ms Bashour submitted that she did not refuse to attend the medical examination because of her fear of what it might involve, but because of an inability to attend because of her medical conditions.[353]
10. Ms Bashour submitted she informed ANZ she was physically unable to attend the appointment at the scheduled time but would attend a later appointment when her physical conditions improved.[354]
11. In closing submissions in reply, Ms Bashour referred to her closing submissions at [83] in which she submits inferences should be drawn from ANZ's inflexible attitude towards her inability to attend the appointment with Dr White and unwillingness to offer a later appointment, which are: ANZ continued to purport not to understand clear medical evidence, manufactured office attendance requirements and directed attendance at Dr White 'as a pretext for forcing the Applicant to accept its offer to settle the litigation, which was then on foot in the 2014 FCA proceedings and/or terminate Ms Bashour's employment.'[355]

1. In opening submissions, ANZ submits Ms Bashour details her assumption that any medical assessment with Dr White would involve an internal pelvic examination which may pose a risk to her health and her unborn child, and that ANZ did not inform her the examination would not be invasive or internal and this was only learned from medica coverage.[356]
2. ANZ submits this is not the Applicant's pleaded case that she did not attend because of assumed risks to herself or her unborn child. The applicant's medical grounds are at [135] - [136] of the FAPOC. Further, the allegation is the assessment should have been postponed until she was no longer on sick leave and was physically and or psychologically able to attend.[357]
3. ANZ did not know as at 2014 Ms Bashour had a trauma induced major depressive disorder, as no diagnosis had been made at this time. ANZ submits this condition is therefore irrelevant to consideration of section 20(3), as an employer cannot engage in the process of giving consideration to a request for a reasonable adjustment by reason of a disability the employer is unaware of at the time.[358]
4. With respect to the other disabilities relied on by the applicant, ANZ deny the medical evidence establishes that Ms Bashour was physically incapable of attending the medical appointment with Dr White by reason of symptoms of her physical disabilities.[359]
5. In closing submissions, ANZ submit that, an essential part of Ms Bashour's second (and third) failure to make reasonable adjustment claims was that during 2014 she suffered trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms.
6. ANZ submits that Ms Bashour has not pleaded a 'manifestation of symptoms' case regarding her disability, 'trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms.'[360]
7. Section 20 requires the employer to know the disability being relied on (or symptoms which constitute a manifestation of that disability). If an employer does not know an employee is suffering from a psychiatric condition or that symptoms are a manifestation of that condition, 'then it cannot be unreasonable for the employer to fail to make any particular adjustment.'[361]

1. Ms Bashour claims she could not comply with the direction to attend the IME and required that the IME be postponed until such time that she was physically and/or psychologically able to attend. In failing to postpone the IME until such time that she was no longer on sick leave and/or was physically and/or psychologically able to attend, ANZ failed to make reasonable adjustments for her disability, such that Ms Bashour was not able to perform the genuine and reasonable requirements of her role, namely follow the directions of her employer by attending the IME.
2. Ms Bashour claims she was unable to comply with the direction to attend the IME on 15 July 2014 because of her pelvic instability, low blood count and anaemia, psychiatric/psychological condition, and or pregnancy related and/or pregnancy induced light headedness. I note the disabilities relied on by Ms Bashour are put on the basis of 'in addition to' and 'in the alternative.' ANZ disputes Ms Bashour required the adjustment, has denied knowledge of the psychiatric/psychological condition and has queried the extent of the claimed disabilities.

1. It is not disputed by ANZ that Ms Bashour suffered from pelvic instability. However the extent and effect of her pelvic instability was in issue, and that was the reason ANZ sought the independent medical assessment from Dr White.
2. Dr Chew stated that Ms Bashour was suffering from pelvic instability and associated back and pelvic pain. He noted '[t]he pelvic instability is exacerbated by long periods of travel and walking. Katherine is finding that travelling into her work place at the Docklands is also exacerbating her discomfort. I have advised Katherine not to travel long distances or walk long distances.'[362]
3. In Ms Bashour's submissions she states that the correspondence clearly indicates she was unable to attend the IME and informed ANZ of this and she was willing to attend a re-scheduled appointment.
4. In her email to Mr Zeman dated 10 July 2014, Ms Bashour referred to 'all the reasons that currently prevent me from attending the Docklands office.' 'All the reasons' includes pelvic instability, but in this email, Ms Bashour did not request ANZ to delay the appointment based on her pelvic instability and instead, stated: 'I have just received blood test results that make it risky for me to travel, otherwise I would be happy to attend.' She did not provide Mr Zeman with medical evidence in support of her blood tests, nor did she request an alternative date.
5. If by saying 'otherwise I would be happy to attend' constitutes a request to delay the appointment because of her blood tests and attend on a later date, the evidence is inconclusive whether Ms Bashour was unable to attend Dr White's appointment because of her pelvic instability. That uncertainty goes to the reason ANZ had initially sought the independent assessment. She was on sick leave and had attended other medical appointments, including with Dr Crimmins on 7 and 14 July 2014. This is relevant to assessing whether Ms Bashour required the adjustment claimed.
6. Section 20 applies to a person with a disability who is an employee and requires adjustments to perform the genuine and reasonable requirements of employment. I am not satisfied the evidence is sufficient to find Ms Bashour required the adjustment to postpone the IME on the basis of her pelvic instability.
7. On the balance of probabilities, I am not satisfied Ms Bashour required the adjustment of postponement of the medical assessment on the basis of her pelvic instability.

Low blood count and anaemia from July and early August 2014, and pregnancy related or induced light headedness from around July until August 2014

1. I turn to consider the other physical disabilities claimed by Ms Bashour as the basis on which she required the adjustment, namely the postponement of the medical assessment.
2. Ms Bashour attended an appointment with Dr Crimmins on 7 July 2014. Following the 7 July 2014 appointment, Ms Bashour obtained a medical certificate certifying she was unfit for work because of a 'medical condition' for the period of 7 July 2014 - 11 July 2014 (inclusive).[363] Ms Bashour attended this appointment with her father, who notified Ms Edelman in an email attaching the certificate that '[he] took her to the doctor today.'[364] Ms Edelman forwarded this certificate to Mr Zeman.
3. In her statement Ms Bashour describes herself as experiencing chronic dizziness and severe back and pelvic pain and 'Due to the stress of ANZ's unreasonable behaviour, and the lack of personal intervention by the Second to Fifth respondents. I had lost my appetite and could no longer eat.'[365]
4. On 8 July and 10 July 2014 Mr Zeman sent two emails to Ms Bashour, in response to her email of 7 July 2014 to Ms Edelman '...to set up a time to talk through her concerns...' and '...give Ms Bashour an opportunity to ask any questions about the nature of the assessment, or ANZ's reasons for directing her to attend the assessment.'[366] On 10 July 2014, after receiving no response to his letter dated 4 July or his emails dated 8 July and 10 July 2014, Mr Zeman emailed Ms Bashour a letter to advise her that ANZ's direction to attend the independent medical assessment remained on foot, even in the event she was still unfit for work.[367]
5. In his statement Mr Zeman notes he had no knowledge that Dr Crimmins at the 7 July 2014 appointment had diagnosed Ms Bashour with anaemia and iron deficiency and had recommended she commence maternity leave early. Mr Zeman also states ANZ was not notified of her other symptoms of chronic dizziness, severe back and pelvic pain and loss of appetite referred to in Ms Bashour's first statement.[368]
6. On Friday 11 July 2014 at 3:03pm, Mr Zeman received an email from Ms Bashour stating she was unable to attend because she was too unwell because of 'recent blood test results which make it very risky for me to travel. Otherwise, I would be happy to attend the medical appointment with Dr White.'[369]
7. In his evidence, Mr Zeman stated there was no medical evidence in support provided 'in support of this newly advised condition.'[370]
8. On Monday 14 July 2014 at 1:49am, Ms Bashour emailed Ms Edelman that she was 'unwell - medical certificate will follow.'[371]
9. On Monday 14 July 2014 at 2:31pm, Mr Zeman emailed Ms Bashour that he had not received any medical evidence to support why she could not attend the appointment, and that ANZ believes that the direction she attend is reasonable and lawful. Mr Zeman advised that if she did not attend, she would 'need to provide medical evidence that satisfies ANZ that [she has] a reasonable excuse for not attending.'[372]
10. On 14 July 2014 Ms Bashour attended a further appointment with Dr Crimmins, who provided a medical certificate that certified she is 'unfit for work' because of a 'medical condition' from 14 July to 25 July inclusive.[373] Mr Bashour attended this appointment with her.[374] Ms Bashour emailed Ms Edelman a copy of this certificate at 9:38pm that night.[375]
11. At 2:53am on 15 July 2014 Ms Bashour emailed a written complaint dated 14 July 2014 to Mr Zeman, Ms Babani and Ms Paterson (Mr Zeman's manager).[376]
12. Ms Bashour did not attend the medical appointment with Dr White, which had been scheduled for 10:00am on 15 July 2014.
13. On 17 July 2014, Ms Bashour attended another appointment with Dr Crimmins, accompanied by her father. Following this appointment, Dr Crimmins wrote a letter dated 17 July 2014 which referred to Ms Bashour being seen on 7 July 2014 and that blood tests reviewed '...revealed severe anaemia with a very low Haemoglobin as well as a very low iron level. She was reviewed again on the 14th July and needed her father to assist her to the consultation. She is very light headed and travel is impossible for her unless assisted and supervised in case of falls.'[377] On 20 July 2014 at 3:08pm, Ms Bashour's emailed this letter from Dr Crimmins to Mr Zeman.[378]
14. With respect to the evidence, as at 14 July 2014, Mr Zeman had medical advice that Ms Bashour had pelvic instability. Whilst he knew back and pelvic pain were associated with pelvic instability, he stated in his statement he did not know Ms Bashour was suffering severe back and pelvic pain.[379] He was aware from Ms Bashour's email dated 11 July 2014 that 'recent blood tests make it risky for me to travel.' He was not aware of her other symptoms as the medical certificates he had both stated, 'unfit for work' because of a 'medical condition'.
15. On 14 July 2014 at 2.31pm Mr Zeman sent an email to Ms Bashour that in the absence of any medical evidence the direction to attend the independent medical assessment with Dr White on 15 July 2014 was lawful and reasonable.
16. In my view, Ms Bashour was on notice from Mr Zeman's email of 14 July 2014 that the direction to attend Dr White for an assessment remained on foot although she was on sick leave, and that medical evidence was required.
17. In her four page letter of complaint to Ms Babani, Ms Paterson and Mr Zeman dated 14 July 2014 I extract the following where she stated under the heading:

In your email to me sent on 14 July

Your email of 14 July 2014 also contains numerous misstatements.

You have stated that the direction to attend the medical assessment is what caused my distress. At no stage did I ever refuse or state to Liana, or anyone else, that the direction to attend a medical assessment was the distressing factor.

Before making such determinations you should confirm the grounds. In particular, I would like to inform you that the grounds of distress are:

i). The alternation of questions by you in order to justify a direction despite the evidence you have on hand;

ii). Out of all the Employee Relations Advisors across the Bank, you have taken carriage of this file - despite the serious allegations I have made against you personally.

iii). That I undergo an invasive gynaecological assessment for your viewing - and that I am to contact you should I want a copy of the report.

iv). That you failed to consult me to check my availability regarding booking times.

Additionally, you have drawn another incorrect conclusion by misquoting me in your email when you stated that:

"you said that you would otherwise be happy to attend the medical appointment with Dr White"...contradicts your earlier response to being directed to attend the appointment as recorded in your email to Liana.

Once again, this is untrue. I never recorded this as being the reason. If you refer back to my email and the context of the sentence, I indicated that I would be happy to attend if I could travel. This is due to the fact that I have nothing to conceal. There is no other communication by me which contradicts this.

Furthermore, the action of directing me to see a doctor whilst I am on sick leave (pursuant to a valid medical certificate) is unreasonable.

Blood Test Results:

I have now provided Liana with further medical certificate covering the next fortnight. This is ample medical evidence. However, if there is a suspicion as to the legitimacy of the certificate then that is a separate issue. The specifics of my blood results are not relevant to the matter in question - they are the grounds of my current medical certificate and my entitled leave.

This treatment is driving me to the point of distraction. I have a young child to care for, a full time job and an unborn child to consider not to mention my own wellbeing.

I request that this complaint be handed to another Employee Relations representative and please refrain from communicating with me whilst I am trying to recover.[380]

1. In this response Ms Bashour makes no reference to Mr Zeman's request for medical evidence in the event she is unable to attend the appointment on 15 July 2014 with Dr White. It is unclear why Ms Bashour did not request a letter from Dr Crimmins explaining her medical condition for the second period of sick leave, from 14 to 25 July 2014. Mr Zeman's email of 10 July 2014 had advised ANZ still directed her to attend, even in circumstance she was 'unfit for work'. The absence of medical information (as opposed to medical certificates) was the reason why Mr Zeman had indicated on 14 July that she was still required to attend on 15 July 2014. She had attended Dr Crimmins on 14 July 2014.
2. I am not satisfied Ms Bashour demonstrated to ANZ that she required the adjustment. She did not provide ANZ with medical evidence. The onus is on Ms Bashour is to establish the element in section 20(1) that she 'requires adjustments.'
3. The only medical information Mr Zeman had at 14 and 15 July 2014 was about her pelvic instability and Ms Bashour's own reference to the results of 'blood tests that make it risky for her to travel'. In her complaint letter of 14 July 2014, Ms Bashour declines to provide further detail about the blood test results stating 'the specifics of my blood results are not relevant to the matter in question - they are the grounds of my current medical certificate and my entitled leave.' This was in direct response to Mr Zeman's email, in which he had indicated that ANZ needed medical evidence as the reason she had given for not attending was 'vague and not supported by medical evidence'.
4. There is also some dispute as to the severity of Ms Bashour's blood test results. Dr Crimmins letter dated 17 July 2014 refers to 'severe anaemia with a very low Haemoglobin as well as a very low Iron level.'[381] Both experts, Professor Euan Wallace and Professor Mike O'Connor agreed the blood test results were of 'mild to moderate anaemia' requiring an oral iron supplement.[382]
5. In considering the above, as at 14 July 2014, Mr Zeman had no medical evidence about the pleaded conditions of 'low blood count and anaemia and pregnancy related or induced light-headedness.'[383]
6. On the assessment of the evidence and the facts about her medical condition at the time, 14 July 2014, I do not find Ms Bashour provided sufficient information to ANZ that she required the adjustment.
7. Information was forthcoming in Dr Crimmins' letter dated 17 July 2014 which adequately explains the nature of her low blood count and anaemia light-headedness. His letter does not specifically state she cannot travel to an appointment, but that 'travel is impossible for her unless assisted and supervised in the case of falls.' On 14 July 2014 she had been able to attend the appointment with Dr Crimmins with the assistance of her father.
8. The letter dated 17 July 2014 by Dr Crimmins was not provided to ANZ until 20 July 2014.
9. What is relevant is the information Ms Bashour provided to ANZ at the time when she stated she could not attend the appointment, being 11 July 2014 and then 14 July 2014. Her conditions, except for pelvic instability, as of 14 July 2014 were unknown to ANZ, and what was confirmed later in the letter by Dr Crimmins dated 17 July 2014 was not provided at the relevant time to ANZ. Given the requirements of section 20(3) the employer is required to know the details of the disability for which the adjustment is required.
10. Section 20 applies to a person with a disability who is an employee and requires adjustments to perform the genuine and reasonable requirements of employment. I am not satisfied on the balance of probabilities the evidence is sufficient to find Ms Bashour required the adjustment to postpone the IME on the basis of low blood count and anaemia and pregnancy induced light headedness.

Trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms from 2014

1. With respect to Ms Bashour's trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms, ANZ does not admit knowledge of or the existence of this disability at the relevant time.
2. Ms Bashour expressed her distress and not being able to sleep in her email to Ms Edelman dated 7 July 2014. These symptoms have not been identified by Ms Bashour as symptoms of a psychiatric illness such as the one claimed. Although the definition of disability in section 4 includes 'behaviour that is a symptom or manifestation of a disability', Ms Bashour did not plead an imputed characteristic with respect to this attribute of trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms. Although the Tribunal is not a court of pleadings, I have referred earlier to the process by which the points of claim and the defence were drafted.[384] At a minimum Ms Bashour should have at least identified the symptoms which manifest the condition to rely on this disability. Ms Bashour did not know she had this claimed disability and has not established ANZ had any knowledge that she was an employee with this disability at the relevant time.
3. I note section 20(2) of the EO Act imposes a positive obligation on the employer. For an employer and employee to engage in the process described in section 20(3),'...all relevant facts and circumstances must be considered.' Section 20(3)(a) provides that one such consideration includes 'the person's or employee's circumstances, including the nature of his or her disability...'. This is confirmed in Ms Bashour's closing submissions in reply, which state:

The authorities which have considered the operation of section 20 generally agree that once the employee takes the initiative of informing the employer of the disability and potentially also the need for adjustments, the next step is, at the very least, that the employer engage in proper reasoned consultation with the employee about making the adjustments which, by its nature, imposes obligations on the employer.[385]

1. I accept ANZ's submission that Ms Bashour has not pleaded this claimed attribute as a 'manifestation of symptoms' case. Further, I accept that an employer cannot engage in the process of considering a request for a reasonable adjustment on the basis of a particular disability if neither employee nor employer are aware the employee is suffering from the disability at the time. Although Ms Bashour was aware of the symptoms of distress and not sleeping, she was not aware these may have been symptoms of a disability. On the balance of probabilities I find there is insufficient evidence about this disability to form the basis of a finding Ms Bashour is 'a person with a disability' for the purposes of section 20(1).

Third alleged failure - postponement of response to disciplinary letter

Further or in the alternative, as a result of her low blood count and anaemia, trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms, and/or pregnancy related or induced light-headedness, the Applicant could not respond to the Disciplinary Letter within the deadline stipulated by ANZ; and required that the deadline for responding to the Disciplinary Letter be postponed until such time that she was no longer on sick leave and/or was physically and/or psychologically able to.

By acting as pleaded in paragraphs 96, 98 and 102, in failing to postpone the deadline for responding to the Disciplinary Letter until such time that the Applicant was no longer on sick leave and/or was physically or psychologically able to, ANZ failed to make reasonable adjustments for her disability, such that the Applicant was not able to perform the genuine and reasonable requirements of her role, namely, respond, and/or follow directions to respond, to allegations concerning her employment, an in particular, respond to the Disciplinary Letter.

In the premises, ANZ contravened section 20 of the EO Act.

1. In response, '[t]he Respondents deny the allegations in paragraph [138].'[386]
2. Further, ANZ say:

The Respondents

139.1 Deny the allegations in paragraph 139.

139.2 Refer to and repeat paragraphs 133[387] and 136 above; and

139.3 Say further that the 'adjustment' which the Applicant alleges was required to enable the Applicant to respond to the letter sent on 16 July 2014 referred to at paragraph 96 above (namely to postpone the deadline for a response until she was no longer on sick leave or physically able to) did not constitute a 'reasonable adjustment' in all the circumstances within the meaning of section 20 of the EOA.[388]

1. The respondents also state they '...deny the allegations in paragraph 140.'[389]

1. In her opening submissions, Ms Bashour submitted the third adjustment she required was a reasonable extension of the deadline imposed by ANZ for her to respond to ANZ's disciplinary letter.[390]
2. She referred to her disabilities namely pelvic instability from April to August 2014, ongoing migraines from late January to August 2014, low blood count and anaemia from in or around July and early August 2014, trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms from 2014, pregnancy related or induced light headedness from in or around July until August 2014 and recurrent severe tension-type and/or stress headaches and/or severe ongoing headaches with migraine features. In addition, during this period of time she suffered from chronic dizziness in addition to severe back and pelvic pain.[391]
3. On 16 July 2014, Mr Zeman sent Ms Bashour a letter alleging her failure to attend the appointment with Dr White on 15 July 2014 was a serious breach of her employment obligations, as a result of which a disciplinary process would be commenced with termination of employment a potential outcome. The letter required a response by 21 July 2014.
4. Ms Bashour states that the contents of the letter were 'incredibly distressing,'[392] and that she '...was extremely upset with this level of questioning and the violation of my privacy' and was worried about ANZ terminating her employment.[393]
5. On 18 July 2014, Ms Bashour advised ANZ that as a result of the deterioration in her health, she would need to take early maternity leave.[394] This was approved by ANZ.
6. On 20 July 2014, Mr Brian Bashour provided ANZ with Dr Crimmins letter dated 17 July 2014.
7. Ms Bashour submits her health deteriorated such that it was necessary for her father to communicate with ANZ during 20-23 July 2014. He emailed Mr Zeman asking that 3-4 weeks be allowed before responding to the Disciplinary Letter.[395]
8. Mr Zeman allowed an extension of four days. Ms Bashour submitted this was timed so that ANZ could terminate her employment prior to commencement of her parental leave.[396]
9. Ms Bashour submits the reasonable adjustment was not made, instead ANZ '... put in place inflexible hurdles with a view to triggering a disciplinary process, with the potential to provide a basis for the termination of the Applicant's employment.'[397]
10. Ms Bashour states she was not able to meet the 'inflexible deadlines' set by the ANZ '...as a consequence of the disabilities which had necessitated the request for the [third] Adjustment.'[398]
11. Ms Bashour referred to the expert report by Dr Phillips dated 28 August 2019 and his opinion '...that the state of the Applicant's psychological health was such that she would not have been able to respond to the Disciplinary Letter in the timeframe sought by the Respondents. This is supported by Dr De Pino in her report of 13 September 2019...'.[399]
12. Ms Bashour submitted the speed with which ANZ was proceeding down the disciplinary path and intransigence regarding the fixed appointment with Dr White raises an inference concerning its motivations.[400] The inference to be drawn is that the ANZ gave no 'thoughtful consideration' to making reasonable adjustments '...which would have allowed the applicant to continue to perform the genuine and reasonable requirements of her employment.'[401]
13. Ms Bashour referenced Lipman v Commissioner of Police[402] and Reddy v International Cargo Express[403] in support of her submission that an inference could be drawn about ANZ's motives based on the speed of their decision making, submitting the decision makers in these cases '...drew inferences adverse to the respondents in relation to their asserted motivation from the speed of their decision making in response to requests from their employees.'[404]
14. Ms Bashour submitted the inference to be drawn from ANZ's conduct regarding all three adjustments was '...to construct a pretext for the termination of the Applicant's employment.'[405]
15. In closing submissions, Ms Bashour noted she required the adjustment of the postponement of the deadline to respond to the Disciplinary Letter until such time she was no longer on sick leave and/or was physically and/or psychologically able to respond.[406]
16. She submits ANZ did not engage in a reasoned approach to proper consultation concerning this adjustment.[407]
17. The Disciplinary Letter dated 16 July 2014 required a response by 21 July 2014 at 5pm. After contact from Mr Brian Bashour on 20 July 2014 attaching a letter from Dr Crimmins dated 17 July 2014, Mr Zeman extended this until 25 July 2014 at 12pm.
18. On 23 July 2014, Ms Bashour emailed Mr Zeman a letter from Dr Crimmins of the same date which provided:

Katherine is pregnant and very unwell due to a low blood count and anaemia. She is not capable of any work and hence correspondence with her at home should cease in order for her to recuperate properly and complete her pregnancy healthily.[408]

1. On 24 July 2014, Mr Zeman emailed Ms Bashour and said that because of Dr Crimmins' letter dated 23 July 2014, '...ANZ will not require your response by 12noon tomorrow.'[409]
2. On 4 August 2014, Mr Zeman emailed Ms Bashour noting her affidavits for her claim in the Federal Court were due on 8 August 2014, and ANZ required any response to the Disciplinary Letter by 12pm on 7 August 2014. From this email, Ms Bashour sought to draw an inference ANZ '...intended to terminate the Applicant's employment before her evidence was due to be filed. This would undermine the General Protections claim which was based on continued employment.'[410]
3. Ms Bashour submits that Mr Zeman, in his letter dated 4 August 2014, '...abandoned his reliance on medical information and made his own assessment of the Applicant's fitness to engage in correspondence with him.'[411]
4. Ms Bashour refers to Professor Dennerstein's evidence about 'segmentation' to explain how Ms Bashour could continue her Federal Court proceedings but not the disciplinary letter because:

So that was traumatic to her and followed on from trauma from her workplace in not being listened to, not being believed and so on, whereas, dealing with the courts tapped into a different part of her brain, which is the sort of legal part which is not, at that point anyway, you know she held the courts in high regard it wasn't a traumatic thing for her.[412]

1. In opening submissions, in response to Ms Bashour's submission about the inference that the Tribunal could draw because of the speed in which ANZ proceeded with the disciplinary process, ANZ noted the following about Lipman: The reasons of Professor Goodman-Delahunty were in dissent in the outcome of the proceeding; the specific passage relied upon represents no more than a paragraph in a dissenting decision; and in any event, the findings of Professor Goodman-Delahunty turned on the specific evidence and facts of that case.[413]
2. I refer to ANZ's opening submissions above at [434]-[435] which address the principles regarding reasonable adjustments.
3. In closing submissions, ANZ disputes Ms Bashour had revealed 'severe anaemia with a very low Haemoglobin as well as very low iron level' as opined by Dr Crimmins. ANZ submitted Dr Chew's evidence at the hearing was it was that her iron levels were in the range of mild to moderate, required over the counter supplements, did not require hospitalisation for an iron infusion and were near normal by mid-August.[414]
4. In closing submissions ANZ refers to the fact that Ms Bashour has not pleaded her claim regarding the attribute of major depressive disorder as a 'manifestation of symptoms case'.[415] Noting Ms Bashour was not diagnosed with any psychiatric condition until either March or May 2017, ANZ submitted there is insufficient evidence to support a finding Ms Bashour suffered from a major depressive disorder prior to then.[416]
5. ANZ submits the Tribunal should not be satisfied Ms Bashour was unable to respond to the Disciplinary Letter and noted the following:
   • On 1 August and 5 August 2014 Ms Bashour sent letters to ANZ solicitors regarding her Federal Court proceeding.
   • On 4 or 5 August 2014 she dictated her Federal Circuit Court application.
   • On 7 August 2014 she appeared in person at the Federal Circuit Court.[417]
6. ANZ submits these actions are inconsistent with someone who is unable to respond to correspondence dated 16 July 2014 by 7 August 2014 because of the disabilities claimed.[418]
7. ANZ submits that, if the Tribunal finds Ms Bashour was unable to respond, it did not fail to make a reasonable adjustment for the Applicant. When ANZ received Dr Crimmins' letter dated 23 July 2014, recommending 'all correspondence with the Applicant at home should cease in order for her to recuperate properly and complete her pregnancy healthily', Mr Zeman immediately deferred the need for the applicant to respond by 16 July 2014. When he became aware of her correspondence to ANZ solicitors dated 1 August 2014 for the Federal Court proceedings, he revisited his decision. By email dated 4 August 2014 he requested her response by 12 noon on 7 August 2014. ANZ submits Ms Bashour did not respond or provide medical information in response to that letter and therefore ANZ did not have '...medical information and advice which would have enabled it to consider whether and if so, what adjustment the Applicant required as a result thereof.'[419]

1. In her FAPOC at [138] and [139] Ms Bashour claims she could not respond to the Disciplinary Letter within the deadline specified by ANZ and required that the deadline for responding to the Disciplinary Letter be postponed until such time that she was no longer on sick leave and/or was physically and/or psychologically able to. The disabilities which she claims made her unable to respond were; her low blood count and anaemia, trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms, and/or pregnancy related or induced light headedness.[420] Although she has referred in her submissions to disabilities of pelvic instability from April to August 2014, ongoing migraines from late January to August 2014, low blood count and anaemia from July and early August 2014, trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms from 2014, pregnancy related or induced light headedness from around July until August 2014 and recurrent severe tension-type and/or stress headaches and/or severe ongoing headaches with migraine features, and states that in addition at that time she suffered from chronic dizziness as well as severe back and pelvic pain, the disabilities I will consider are the ones pleaded, namely her low blood count and anaemia, trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms, and/or pregnancy related or induced light headedness
2. She claims that by failing to postpone the deadline, ANZ failed to make a reasonable adjustment for her disabilities, and she was not able to perform the genuine and reasonable requirements of her role to respond and/or follow directions to respond to allegations concerning her employment, in particular respond to the Disciplinary Letter.[421]
3. I consider the documentation relevant to this part of Ms Bashour's claim.
4. In the letter from Mr Zeman dated 16 July 2014 he states, in part:

...

You were directed by ANZ to attend an independent medical assessment (Assessment) with Dr Bernadette White at 10am on Tuesday, 15 July 2014. You did not attend the Assessment. ANZ considers you have breached a reasonable and lawful direction to attend the Assessment. ANZ considers this to be serious and the purpose of this letter is to give you an opportunity to explain why you did not attend the Assessment. Please be aware that if ANZ is not satisfied that you had a reasonable excuse for failing to attend the Assessment, formal disciplinary action may be taken. Disciplinary action could range from a warning up to termination of employment.

...

ANZ therefore invites you to provide in writing any further information you would like to have considered as to why you failed to follow ANZ's reasonable and lawful direction by not attending the Assessment. You are required to provide this information to me by 5pm on Monday, 21 July. I will then pass it on to the ANZ manager who will make a decision. This will not be Mark or Liana.[422]

1. On 20 July 2014, Mr Brian Bashour emailed Mr Zeman a letter from Dr Crimmins dated 17 July 2014 referred to above.
2. On 20 July 2014, Mr Brian Bashour also emailed Mr Zeman the following:

Hi Daniel.

As you may know, I am Katherine Bashour's father. She is very unwell so I am writing to you on her behalf. My wife and I are caring full time for Katherine and her child due to her health so I have first hand experience to all the issues that Katherine is facing. Since yesterday afternoon her condition has become so much worse.

I understand that you want to know why Katherine was unable to attend the medical appointment in East Melbourne last week. Despite that on 7th July I sent Katherine's line manager a medical certificate stating that she was suffering from a medical condition. you still wanted her to attend that appointment. She was very worried that she might faint and injure herself. You then insisted you wanted details, so on 17th July I took her again to see the doctor and he wrote a letter which specifies her condition and outlines why she can't travel. She agrees to send you Dr Crimmins letter, and has given my authority to send it to you, despite that she believes it is a breach of her privacy. I now send you a copy of Dr Crimmins letter in response to your request.

I must say, I am very upset to see my daughter suffering like this and especially in her fragile condition. I'm very concerned for her wellbeing and for that of my unborn grandchild and I would have thought that ANZ would be understanding and compassionate for a sick and heavily pregnant woman. She needs rest and she has asked you to allow her to rest whilst she is on sick leave. Could you at least respect that request.

Katherine has told me that she will personally respond to you as soon as possible.

Regards.

Brian Bashour.[423]

1. On 21 July 2014, Mr Zeman sent a short response to Ms Bashour in response to Mr Brian Bashour's email, stating '...if there is further information you wish to provide in response to my 16 July letter, please do so by 12 noon this Friday, 25 July.'[424]
2. On 22 July 2014, Mr Brian Bashour again emailed Mr Zeman, stating:

From your email to me, I understand that you are still writing to Katherine, despite I begged you to show mercy and not write to her because of her serious condition and allow her a chance to recover whilst she is still experiencing severe symptoms.

You mentioned in the email you sent to Katherine that you are treating my email to you (sent Sunday) and the letter by Dr Crimmins as representing her formal response. It is not her response, it was just providing you with the reason why she could not attend the appointment you made on her behalf without her knowledge.

I further understand that you are not giving her a legitimate chance to respond to your allegations and to defend herself. What's the rush if she's on maternity leave? Why can you not provide her with a few weeks to recover whilst she is on leave?

If you are really intending to give her procedural fairness, then you should give her the chance to recover, at least over the next 3 to 4 weeks, unless the verdict to terminate her employment has already been set. Katherine has evidence and information that she want's to submit to defend herself and address your allegations, but obviously she is in no state to concentrate and draft the submission.

We all know it would be unfair to proceed with a decision without allowing her to submit her defence.

Thanks for your understanding.

Regards.

Brian Bashour.[425]

1. On 23 July 2014 at 10:42am, Mr Brian Bashour sent a third email to Mr Zeman stating:

Dear Daniel.

In addition to the email I sent to you on 22 July, I was expecting you to confirm whether ANZ has granted Katherine an extension or if you are still pressing forward with 25 July as being the final date, regardless of Katherine's serious illness.

I need you to respond to me by 12 noon today.

If Katherine's employment is terminated whilst she is seriously ill and on maternity leave and without her having an opportunity to submit her defence and evidence in reply, then the termination would be unlawful. Furthermore, in my opinion this termination would appear to be designed in order to escape some of the consequences of the Federal Court case Katherine has filed. It is also my view that not only would this termination be unlawful, but would also involve deceit, conspiracy and bad intentions.

I can't stand by and keep watching my daughter suffer. Please reply.

Regards.

Brian Bashour.[426]

1. On 21 July 2014 Ms Bashour had attended a further appointment with Dr Crimmins. Dr Crimmins provided Ms Bashour a letter dated 23 July 2014, saying:

Katherine is pregnant and very unwell due to a low blood count and anaemia. She is not capable of any work and hence correspondence with her at home should cease in order for her to recuperate properly and complete her pregnancy healthily.[427]

1. On 23 July 2014, at 7:42pm, Ms Bashour emailed Mr Zeman, attached Dr Crimmins' letter, and said:

You know how sick I am (from my ongoing certificate 14/7 and medical letter 17/07 (and additional as attached)) and am unable to communicate with you, but I reserve my right to comment on your letter 16 July which raises a number of fresh issues. I cannot respond by 25 July but I will do so as soon as I physically can. I am preparing for hospital now.

I will touch base with you once my doctor gives me the go-ahead.

1. On 24 July 2014, Mr Zeman emailed Ms Bashour and said:

Hi Katherine

Thank you for your email and for providing the medical certificate from Dr Crimmins. Contrary to the implication in your email, this is the first medical evidence you have provided which states you are unfit to receive correspondence from ANZ. While the certificate does not state that you are unfit to respond to my letter of 16 July, I am writing to confirm that ANZ will not require your response by 12noon tomorrow. I trust you appreciate my need to correspond with you on this point.

Please note that the unacceptable behaviour process remains on foot, and this further opportunity to respond cannot be held open indefinitely.

Kind regards

Daniel[429]

1. On 1 August 2014, Ms Bashour emailed the following correspondence to Maddocks lawyers, acting for ANZ, regarding her Federal Court proceedings:

Dear Mr Blake and Ms Fitch,

As you may be aware, I am quite unwell due to pregnancy related complications and therefore have been relying on assistance of others regarding paperwork in this matter, so this is the earliest opportunity I have had to contact you.

It appears that ANZ has failed to comply with the orders of Justice Tracey dated 18 June 2014 that ANZ provide discovery of certain categories of documents in this proceeding. The following documents that are clearly within these categories have not been provided:

Category 3(b)

• my Remuneration Outcome letter for 2011 financial year.

Category 3(cc)

• no information regarding revisions of the ANZ Flexible Work Arrangements Policy and who authorised those revisions, although the Policy has been updated within the time frame specified under the category.

Category 3(h)

Only contains limited number of emails between K Turner and me, although, I was advised via email that Susie Babani had referred the matter. Susie Babani was overseas at the time, so clearly there should be an email trail of the referral.

Category 3(i)

• no information regarding the direction to provide ANZ with a fitness for work certificate. Notably, Ms Edelman raised this in a number of letters that she had been advised by human resources representative of this requirement.

Category 3(l)

• my completed Talent Radar Leadership Profile (completed by P Harman and A Sloane in 2010).

Category 3(o)

• past performance reviews of Liana Edelman. Although Ms Edelman has been in the employ of ANZ for over 4 years, none of her past performance reviews have been discovered.

Category 3(z)

• No information regarding ANZ processes providing that human resources not to confirm outcomes of investigations in writing and no avenue to escalate complaints as claimed by K Turner.

Disturbingly, it also appears that parts of some documents have been concealed, for instance:

• (Cat 3(b)) - my Remuneration Outcome letter for 2012 - the version discovered omits the identity and signature clause of the author, which was Glenn Haslam.

• ANZ has discovered internal human resources case notes [Case ID 3858172]. I note that the Bank has discovered 23 pages, of which approximately 20 of those pages are blank (there is a shadow outlining the blank parts). The only parts discovered are copies of emails sent by me or immaterial entries. In the absence of sighting the full document, I suspect that this document contains relevant information relating to my flexible work arrangement complaint as the case ID is cross referenced in another document pertaining to my flexible work arrangement complaint and accordingly this document should be captured under the earlier categories.

Please discover and provide copies of these documents (in full) as a matter of urgency, as they are extremely relevant to the preparation of my affidavit material, which is due on 8 August 2014. Would you please provide by cob Monday, 4 August (at the latest).

Yours faithfully,

Katherine Bashour[430]

1. On 4 August 2014, Mr Zeman sent the following email to Ms Bashour:

Hi Katherine

I refer to my letter of 16 July and my email of 24 July.

As you will recall, my 16 July letter asked you to explain why you did not attend an independent medical assessment arranged by ANZ. You were asked to respond by 5pm on Monday, 21 July. Information responsive to my letter was provided on Sunday, 20 July. When you indicated you wished to respond further to my letter, the timeframe was extended until 12 noon on Friday, 25 July. You then provided a letter from Dr Crimmins dated 23 July which stated, 'she is not capable of any work and hence correspondence with her at home should cease in order for her to recuperate properly and complete her pregnancy healthily'. After considering that letter, I advised you by email on Thursday, 24 July that the timeframe for your further response would be deferred. I also advised you that the concerns set out in my 16 July letter remain and the opportunity for you to respond further would not be held open indefinitely.

I have been made aware that on Friday, 1 August you emailed Maddocks with your concerns about ANZ's discovery in relation to your Federal Court application. I am advised in your email you were able to set out clearly your concerns, including by identifying some specific documents which you consider exist and should have been discovered under one of the categories of discovery. I am advised your email demonstrates that you have been able to analyse ANZ's discovered documents in detail. I am told there are many such documents. I am also advised you asked Maddocks to respond to your email, and provide the documents you identified, by the end of today because they are relevant to the preparation of your affidavits. I understand your affidavits are due this Friday (8 August).

In light of this, ANZ considers you are able to respond to my 16 July letter. ANZ requires any further response you wish to make by 12 noon on Thursday, 7 August. I will then refer all relevant information to the relevant ANZ manager.

Kind regards

Daniel[431]

1. During cross-examination, Ms Bashour indicated that she dictated the 1 August 2014 letter from bed while her mother typed it.[432] Ms Bashour also explained that she was also receiving assistance in her Federal Court proceedings from her 'friends who are lawyers'.[433]She also noted as the Federal Court proceedings had been on foot for some time, she was receiving assistance and this was why she was able to respond. In her letter dated 1 August 2014, she notes she has '...been relying on assistance of others regarding paperwork in this matter'.
2. On 4 August 2014, Dr Daisy Joseph signed a medical certificate stating:

To Whom it may concern

Katherine presented today very upset and after a migraine episode with headache and vomiting. She states that this was triggered by an email from ANZ received earlier today. On examination she looked pale and had a tachycardia with a pulse rate of 117. I have advised her to see her specialist in relation to this.

I am concerned about her health especially being pregnant with complications and under close monitoring by her specialist. Any stress at this stage will be detrimental to her pregnancy and she is advised rest and not to respond directly to any communication from ANZ in order to have a safe and healthy pregnancy.[434]

To whom it may concern

...

Katherine is now in late third trimester and is on maternity leave. She has reported on-going issues with work place relations; causing insomnia, anxiety and stress. For the health of Katherine and her unborn child, I respectfully' request deferment of further communications until six weeks post partum.[435]

1. Neither the certificate of Dr Joseph dated 4 August 2014 nor the letter from Dr Chew dated 5 August 2014 were given to ANZ.
2. On 5 August 2014, Ms Bashour prepared and filed an adverse action claim against ANZ in the Federal Circuit Court alleging contravention of a general protection, seeking an injunction, compensation and pecuniary penalty.[436]
3. On 7 August 2014, Ms Bashour appeared in the Federal Circuit Court for her application.
4. On the basis of the chronology supported by the above documentation there is an inconsistency between the emails and the medical certificates sent to ANZ, the certificates dated 4 August and 5 August 2014 which were not sent to ANZ, the email Ms Bashour sent to ANZ solicitors on 1 August 2014, the documentation prepared for the Federal Circuit Court application on 5 August 2014 and her appearance at the Federal Circuit Court on 7 August 2014. The medical certificates report a state of health which is inconsistent with Ms Bashour's ability to correspond with ANZ lawyers, prepare legal documents and attend court.
5. One explanation is that Ms Bashour recovered from her health conditions, described in the correspondence variously as 'needs rest', 'serious condition', 'severe symptoms', 'serious illness', 'preparing for hospital' in the emails between 20 to 23 July 2014 and Dr Crimmins' letter dated 23 July 2014 by the time she commenced maternity leave on 1 August 2014. However, that interpretation is inconsistent with two pieces of medical evidence which Ms Bashour did not provide to ANZ, being; firstly, the certificate from Dr Joseph dated 4 August 2014 which describes Ms Bashour suffering from a migraine and vomiting 'triggered' by Mr Zeman's email of the same day, and medical advice not to respond directly to any communication from ANZ in order to have a safe and health pregnancy. Secondly, the letter from Dr Chew dated 5 August 2014 referring to issues with work place relations, seeking, for Ms Bashour's health and for that of her unborn child, deferment of further communications until six weeks post partum.
6. The medical advice from Dr Joseph and Dr Chew is also inconsistent with Ms Bashour preparing an application to the Federal Circuit Court filed and dated 5 August 2014 and her appearance at the Federal Circuit Court on 7 August 2014.
7. In the alleged contravention section of her application to the Federal Circuit Court, Ms Bashour makes no reference to the 4 August 2014 Dr Joseph certificate or 5 August 2014 Dr Chew certificate. Instead, Ms Bashour submitted the following:

...

On 4 August 2014 the Respondent sent me an email noting that my Affidavit was due in the Federal Court proceedings on 8 August 2014 and requiring that I provide my response in the 'unacceptable behaviour process' by noon 7 August 2014.

If I do not provide a response to the 'unacceptable behaviour process' by noon 7 August 2014 it is very likely that the Respondent will terminate my employment. The Respondent has informed me in writing that this is a possible outcome of this 'unacceptable behaviour process'.

This direction to respond by 7 August 2014 is unfair and unfounded and I deny that any of my conduct has been unacceptable.

At no times did I refuse to attend the medical appointment to undergo an internal pelvic examination regarding this temporary pregnancy related condition, as arranged by the Respondent.

The direction to attend the medical assessment and this subsequent direction to provide a response by noon 7 August 2014 are not reasonable in the circumstances. These two directions, and the requests for unnecessary medical information, and the refusal to accept the various medical reports provided by my treating medical practitioners, the constant invasion of my dignity and privacy and the imposition of the ANZ unacceptable behaviour process are an attempt by the Respondent:

(a) to manufacture a reason to terminate my employment before the Federal Court proceedings are heard; and/or

(b) to punish me for initiating the Federal Court proceedings; and/or

(c) to punish me for making internal complaints against other ANZ staff members;

(d) to make it difficult for me to pursue relief in the Federal Court proceedings.[437]

1. During cross-examination, in response to why she did not provide Dr Chew's 5 August 2014 letter to ANZ, Ms Bashour said:

I've been emailing Mr Zeman, Ms Edelman and the senior executives for a very long time without any assistance, so no, I felt that I needed something to compel to follow through.[438]

1. Consistent with Ms Bashour's evidence and the documentary evidence, rather than reply to the ANZ's letter, Ms Bashour responded by issuing court proceedings. It may be the case she had greater faith in the court's decision-making process than in ANZ's, but to say that she was incapable of responding to ANZ's letter in those circumstances is improbable.
2. The chronological facts are that once Mr Zeman was provided with Dr Crimmins' report dated 23 July 2014, he emailed Ms Bashour on 24 July 2014 to advise her he no longer required her response by noon on 25 July 2014.
3. To that extent on 24 July 2014 ANZ did provide a reasonable adjustment that Ms Bashour was not required to respond to the Disciplinary Letter and provided an extension on the basis of Dr Crimmins' opinion. Mr Zeman did not specify a time at which Ms Bashour needed to respond but noted it could not be 'held open indefinitely'.
4. Justice Richards in LG v Melbourne Health[439] cautions that '...the danger of privileging medical evidence over other relevant evidence must be borne steadily in mind by the Tribunal.'[440] In that case which concerned the question of capacity, Her Honour stated in the light of evidence from the proposed represented person:

...the Tribunal could not abdicate its decision-making role by simply accepting the opinions of Dr Genardini and Dr Straw as conclusive of the question of capacity. It had to make its own findings of fact on material issues, and explain how it arrived at them.[441]

1. The same applies in this case. The medical evidence cannot be privileged to the extent of disregarding relevant or contrary conduct. Ms Bashour's correspondence on 1 August 2014, preparation of an urgent application for the Federal Circuit Court on 5 August 2014, and appearance at the court on 7 August 2014 are inconsistent with the information in her medical certificates.
2. There was an exchange in the Federal Circuit Court on 7 August 2014 regarding Ms Bashour's physical inability to attend the appointment with Dr White (as opposed to responding to the Disciplinary Letter). This inconsistency was identified when she attended the Federal Circuit Court hearing and Ms Bashour told the judge she could not attend the medical assessment because:

...it's impossible for me to travel alone or unassisted because of my severe anaemia, and there's a high chance that if I fall or faint, could injure myself, and so I need to wait for my obstetrician to come back from overseas, to arrange a hospital admission for treatment and that it will take further time to recover.[442]

Well look, I have to say there's a bit of a glaring issue here, which is that, you know, you've been able to come to court...and so, you know, it's sort of hard to understand how you can come to court, but not come to a doctor.[443]

1. I am not able to reconcile Ms Bashour's email, court application and court attendance on the above dates with the medical advice. It is a mystery how she can be as unwell as is described in the medical material yet conducting legal proceedings at the Federal Circuit Court on her own behalf. This is also compounded by Ms Bashour's choice to not provide ANZ with Dr Chew's medical certificate of 5 August 2014, which contained the strongest recommendation to defer communications until six weeks post-partum.
2. She is perfectly entitled to have filed her application at the Federal Circuit Court, but it is difficult to reconcile this with not being able to respond to the Disciplinary Letter. I find on the evidence Ms Bashour has not discharged the onus under section 20(1) that she required the adjustment, namely that she 'required that the deadline for responding to the Disciplinary Letter be postponed until such time that she was no longer on sick leave and/or was physically ... able' and was otherwise unable to reply to the Disciplinary Letter by 7 August 2014 on the grounds of her low blood count and anaemia and/or pregnancy-related or induced light headedness. These physical symptoms would have remained the same regardless of whether she was dealing with ANZ solicitors, the court, or ANZ directly.
3. I now refer to her trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms. As noted previously, Ms Bashour has not pleaded which symptoms she relies on in support of her position that she was psychologically unable to respond.
4. I repeat paragraphs [403]-[411] above, that section 20(2) imposes a positive obligation on the employer. For an employer and employee to engage in the process described in section 20(3), '...all relevant facts and circumstances must be considered'. Section 20(3)(a) states what must be considered includes 'the person's or employee's circumstances, including the nature of his or her disability.'
5. I accept ANZ's submission that Ms Bashour has not pleaded this claimed attribute as a 'manifestation of symptoms' case. Further, I accept that an employer cannot engage in the process of considering a request for a reasonable adjustment on the basis of a particular disability if neither employee nor employer are aware or suspect the employee is suffering from the disability at the time.
6. Ms Bashour has not identified the psychiatric 'symptoms' she relies on as manifestation of a disability in support of her requirement of the postponement of the deadline to reply to the Disciplinary Letter. As referred to above, Ms Bashour did not know she had this claimed disability and has not established ANZ had any knowledge that she was an employee with this disability at the relevant time. This disability has not been established, nor ANZ's knowledge of it. In order for the positive obligation in section 20(2) to be made out and the process described in section 20(3) to be considered, ANZ must have had knowledge of the claimed disability.
7. I am not satisfied on the balance of probabilities Ms Bashour has established she is a person with a disability for the purposes of section 20(1) or that ANZ had knowledge of the disability. For these reasons I do not find ANZ has contravened section 20.

Fourth alleged failure - reduction of workplace conflict

1. At [140.1] of her FAPOC Ms Bashour claims that '...as a result of one or more of the conditions suffered by the Applicant as set out at paragraph [130] above, the Applicant required a reduction of workplace conflict.'
2. At [140.2] Ms Bashour claims:

By acting as pleaded as set out in Part B above in failing to reduce the workplace conflict from at least 28 March 2014 (when ANZ received the letter from Dr Joubert dated 27 March 2014), despite the requests and recommendations of several of the Applicant's treating specialists, and the requests of the Applicant, ANZ failed to make reasonable adjustments for the Applicant's disability or disabilities, such that the Applicant was not able to perform the genuine requirements of her role safely.

1. Accordingly, Ms Bashour claims at [140.3] that 'In the premises, ANZ contravened section 20 of the EO Act.'

The Respondent's deny the allegations in paragraph 140.1 and say further that although the phrase 'workplace conflict' was used in Dr Joubert's letter of 27 March 2014, neither that letter nor the allegations in paragraph 140.1 identify the alleged 'workplace conflict' with sufficient precision to render that phrase capable of being understood in the context of the Applicant's allegation of contraventions of s 20 of the EOA.

The Respondents deny the allegations in paragraph 140.2, and say further that the allegations are vague and impossible to plead to because the 'genuine and reasonable requirements' of the Applicant's role which she was allegedly unable to perform safely have not been identified. Under cover of that denial and that objection, the Respondents:

140.2(a) Refer to and repeat paragraphs 133, 136 and 139 above; and

140.2(b) Say further that the 'reasonable adjustment' which the Applicant alleges was required in order to enable her to 'safely' perform the genuine and reasonable requirements of her role safely (namely 'a reduction in workplace conflict') did not constitute a 'reasonable adjustment' in all the circumstances within the meaning of section 20 of the EOA.

1. At [140.3] ANZ state 'The Respondents deny the allegations in paragraph 140.3.'

1. In opening submissions Ms Bashour submitted, '[i]n early 2014, the Applicant became pregnant again and required the cooperation of the First Respondent in reducing workplace conflict...'.[444]
2. In her closing submissions Ms Bashour refers to 20 January 2014 and the incident she described of Mr Shaw slamming his folder on the desk behind the Applicant stating words to the effect, 'I can't believe she turned up.' Following this incident Ms Bashour reported to Ms Edelman and the Injury Management Team at ANZ she suffered from '...intense neck pain and stiffness radiating down my shoulders and up via my neck to my head - causing severe/chronic and constant headaches.'[445]
3. In closing submissions in reply, Ms Bashour contended the respondents not only failed to make the adjustments but failed at the preliminary stage by not engaging in proper reasoned consultation about the adjustments, '...of reducing workplace conflict,...set out at paragraphs [123] to [124] of the Applicant's Closing Submissions.'[446]
4. On 23 January 2014, Ms Bashour saw neurologist and migraine specialist Dr Jacques Joubert for the first time. On 27 February, 27 March and 24 April 2014, Dr Joubert to wrote to ANZ explaining that the conflict at work had led to her condition and recommending a reduction in workplace conflict.[447]
5. Ms Bashour submits ANZ did not engage in a rational approach to proper consultation concerning the adjustment, did not make the adjustment and, instead, increased its combative and punitive approach to the Applicant.[448]

1. In closing submissions, ANZ submits the Tribunal ought not be satisfied Ms Bashour required a reduction in workplace conflict because of her attributes.[449]
2. It submits the letters from Dr Joubert and Dr Chew do not provide details of the alleged 'workplace conflict' or the steps required to deal with it. Ms Bashour in her FAPOC does not identify the steps that should have been taken. ANZ submitted the recommendation of Dr Joubert and Dr Chew are so vague as to be meaningless, referring to it as 'a "disqualifying vagueness" about the recommendations of Dr Joubert and Dr Chew'.[450]
3. ANZ submits what Ms Bashour means by 'reduction of workplace conflict' is '...the elimination of points of view which do not accord with hers.'[451]
4. In the event the Tribunal finds Ms Bashour did require a reduction in workplace conflict, ANZ submits the Tribunal should find ANZ did not fail to make a reasonable adjustment.[452]
5. The workplace conflict claimed by Ms Bashour was conflict primarily between herself and Mr Shaw and Ms Edelman. ANZ submits that it appears Ms Bashour saw the conflict as concerning (summarised):
   • Attempts to change the contractual terms of her flexible work arrangement;
   • Ms Edelman's management style which was characterised as 'aggressive', involving 'excessive scrutiny' and 'micro-managing' of her;
   • The tone and constancy of emails from Ms Edelman;
   • Ms Edelman requesting a fitness for work certificate when she had been on leave for two months; and
   • The removal of her name from the 'Forward Agenda'.[453]
6. ANZ submits it took steps in respect of each 'conflict' by:
   • Assessing Ms Bashour's request to work from home four days a week through the assessment of the flexible work arrangement;
   • Considering and responding to Ms Bashour's complaints to ANZ People Assist and then later to Ms Babani and Ms Evans, which were all escalated and actioned, although the results were not to Ms Bashour's satisfaction;
   • Defending claims brought in the FWC and Federal Court which were initiated by Ms Bashour, as was its right.[454]
7. ANZ submits '[s]ave for surrendering to the Applicant's demands, it is unclear what ANZ could have done to reduce the "workplace conflict."'[455]
8. Finally, ANZ submitted they did not have medical information and advice to enable it to consider whether and if so, what adjustment the Applicant required.[456]

1. In her FAPOC Ms Bashour refers to pleadings set out in Part B, 'Factual Background'. These run from pages 2-29. The narrative of Part B commences from 2009 when Ms Bashour was first employed by ANZ. Although there are defined terms in Part B there is no definition for 'workplace conflict'. Nor is it a defined term in the FAPOC in Part C under 'Breaches of the Equal Opportunity Act 2010 (Vic)'.
2. Ms Bashour does not make submissions in her opening submissions about this claim.
3. In her closing submissions Ms Bashour refers to the incident with Mr Shaw on 20 January 2014 when she states he slammed a folder on the desk behind her and stated, 'I can't believe she turned up.' She also relies on the recommendations in the reports of Dr Joubert.
4. While Ms Bashour has pleaded the whole of Part B of the FAPOC and made reference to the incident with Mr Shaw on 20 January 2014 in her closing submissions, I note the references to workplace conflict in her Part B of her FAPOC are as follows:
   • Paragraph [68] refers to Dr Joubert's letter dated 24 April 2014 and to Ms Bashour continuing to suffer ongoing migraines and recurrent severe tension-type and/or stress headaches and/or severe ongoing headaches with migraine features due to workplace conflict.
   • Paragraph [69] refers to Dr Chew's letter dated 28 April 2014 to ANZ advising that Ms Bashour's pelvic instability was worsening due to workplace conflict, and that such conflict should be resolved for the sake of her pregnancy and health.
   • Paragraph [72] refers to Ms Bashour sending a written complaint to Ms Babani, Mr Chronican and Ms Evans. As part of the written complaint Ms Bashour provided medical certificates from her obstetrician which advised that the workplace conflict should be resolved so as to avoid any detrimental effects on her pregnancy.
5. The incident with Mr Shaw slamming a book is not pleaded in Part B of the FAPOC. Neither Ms Bashour or Mr Shaw refer to this incident in their witness statements, and it arose for the first time during Ms Bashour's oral evidence in chief.[457] When asked in cross-examination about this incident, Mr Shaw said he did not remember it.[458] It appears the only other ANZ witness who was cross-examined on this was Ms Turner, who could not recall being informed of this incident during her investigations in March 2014.[459] I do not intend to consider this incident as part of this claim, and I find it to be of weak evidentiary value.
6. There were other examples of incidents that could constitute 'workplace conflict' peppered in Ms Bashour's evidence. For example, in her email dated 5 March 2014 of complaint to Ms Babani and Mr Chronican she refers to bullying, victimisation and that '...the situation has now hit crisis mode.'[460] The timeframe in the FAPOC as to when the failure to reduce workplace conflict occurred is '...from at least 28 March 2014 (when ANZ received the letter from Dr Joubert dated 27 March 2014)'.[461] Therefore, any proposed adjustment would need to have been made after this date.
7. In Dr Chew's letter dated 28 April 2014 he states

Due to the conflict in her workplace she reports poor sleep, increasing stress and feelings worsening of pelvic instability...

The recommendation for conflict resolution in the workplace would be suitable so there is minimal impact on her pregnancy and general well being.[462]

...once I reviewed Dr Chew's assessment and letter of 28 April 2014..., I had further medical confirmation that it would be detrimental to my health to continue direct and face-to-face contact with Ms Edelman. Accordingly, I pushed back on Ms Edelman conducting my performance review.[463]

1. Whilst I note Dr Chew recommends conflict resolution, on the face of it, it is difficult to find the reference, or even the inference, in Dr Chew's letter confirming face-to-face contact with Ms Edelman would be detrimental to Ms Bashour's health. Objectively, the letter does not reflect Ms Bashour's interpretation.
2. Ms Bashour relies on Dr Joubert's opinion that the workplace conflict has led to her condition. It is not known exactly what information or incidents Ms Bashour informed Dr Joubert of for him to reach that conclusion. Correspondence from Dr Joubert to Dr Joseph indicated he was not able to diagnose the cause of Ms Bashour's headaches.[464]
3. Dr Joubert refers to reducing workplace conflict. One potential conflict with her workplace as opposed to at her workplace is that, at this time, Ms Bashour was litigating at the Federal Court her dispute with ANZ over her working from home arrangement. If this was one of the conflicts which Mr Joubert's letter was referrable to, to reduce this conflict would require ANZ to abandon their right to defend proceedings. I note DP Beamont in Cederman v Oleochem made the following observation about the stress of litigation:

The Applicant was further aggrieved by the Respondent's response to her application in the AHRC, which she received on 20 April 2022. Whilst the Applicant states that the Respondent's response left her completely shattered and further altered her relationship with the Respondent such that her trust was diminished, it is to be appreciated that it was the Applicant who commenced this litigation. In respect of the litigious approach that the Respondent took in response to the Applicant's application in the AHRC, I consider nothing turns on such conduct. Once a litigious route has been adopted, the parties are free to pursue their own strategic direction as permitted by the law.'[465]

1. Ms Bashour's last day in the office was Friday 11 April 2014, and her submissions describe her as able to perform her employment:

When the Applicant was disabled and working full time from home, she continued to carry out her own duties in addition to a number of duties that were designated to her line and/or skip manager. The Applicant continued to discharge her duties and the duties of her managers productively and efficiently and maintained her high level of performance. Working from home was compatible with the Applicant's Group 4.1 role.[466]

1. In her FAPOC, referencing her written complaint dated 14 July 2014, Ms Bashour claims:

...she had been working from home full time for seven weeks whilst working on senior matters, and had maintained a high standard of performance throughout this period.[467]

1. From these two examples it appears Ms Bashour's evidence was that she was able to perform the requirements of her employment. She does not identify which aspect of her employment she was unable to perform because of the 'workplace conflict' or how the adjustment would assist her in performing her employment.
2. Section 20 of the EO Act applies to a person with a disability who, in this case, is an employee and requires adjustments in order to perform the genuine and reasonable requirements of the employment.
3. Ms Bashour's submissions refer to the ANZ taking a 'combative and punitive' approach rather than making the adjustment. Ms Bashour has not identified the adjustment required for the reduction of workplace conflict for her to adequately perform her employment.
4. Section 20 of the EO Act includes examples of adjustments, such as providing a ramp for access to a workplace or a particular software package for computers, or modifying work instructions or reference manuals, or allowing the person or employee to be absent during work hours for rehabilitation, assessment or treatment, or allowing the person or employee to take breaks more frequently. That is not to say adjustments can only be practical or concrete in nature, but they must be identifiable or definable.
5. In _Gordon v St Vincent's Hospital Sydney Limited[468]_it was held:

The adjustment had to be sufficiently identifiable as to enable the employer and, if required, the Court to determine whether making the adjustment will impose unjustifiable hardship on it, within the meaning of the DD Act... The material facts comprising the reasonable adjustments must be pleaded and particularised.'[469]

1. While Gordon was a claim brought under the Federal Disability Discrimination Act 1992 (Cth), and the EO Act does not have the same unjustifiable hardship provision, the principle applies that a requested reasonable adjustment has to be sufficiently identifiable.
2. Likewise, in Slavos v Australasian College of Dermatologists,[470] Jago J queried whether the '...putative discriminator has to conceive of every possible adjustment whether or not sought by the aggrieved person.'[471] In that case her Honour rejected the College had failed to make reasonable adjustments because it had not unilaterally suggested something else.
3. A proposed adjustment was not put to ANZ in specific terms for it to be the subject of the consultation process. ANZ was not on notice as to what kind of specific adjustment was required.
4. For this reason, on the balance of probabilities I do not find ANZ failed to make the adjustment in contravention of section 20.

ANZ's contravention of section 20 of the EO Act:

(a) was part of a course of conduct engaged in by ANZ which was cumulatively inimical to the continuation of the Applicant's employment;

(b) further, or in the alternative, constituted a fundamental breach of the implied term of co-operation in the applicant's contract of employment; the implied term of good faith and reasonableness and/or ANZ's obligation, as an implied term of the Applicant's contract of employment, to provide a safe place of work; and was thus a repudiation of the Applicant's contract of employment ('Repudiation')

(c) brought about the termination of the Applicant's employment on 1 October 2014.

As to the allegations in paragraph 140.4:

140.4(a) The Respondents deny the allegation in paragraph 140.4(a);

and

140.4(b) The Respondents deny the allegation in paragraph 140.4(b),

and say further that no conduct by ANZ constituted either a breach or a fundamental breach of any term of the Applicant's contract of employment, nor did it constitute a repudiation of the Applicant's contract of employment; and

140.4(c) The Respondents deny the allegations in paragraph 140.4(c)

and say further that the Applicant resigned from her employment or 1 October 2014.

1. Ms Bashour claims ANZ's failure to make reasonable adjustments in contravention of section 20 was part of a course of conduct cumulatively inimical to Ms Bashour continuing in her employment. This constituted a fundamental breach of the implied terms in her contract of employment of cooperation, good faith and reasonableness, and to provide a safe space of work, and was a repudiation of her contract of employment and brought about the termination of her employment on 1 October 2014.
2. Examples include Ms Bashour's submission that inferences should be drawn from ANZ's inflexible attitude towards her inability to attend the appointment with Dr White and unwillingness to offer a later appointment, which are: ANZ continued to purport not to understand clear medical evidence, manufactured office attendance requirements and directed attendance at Dr White as a pretext for forcing the Applicant to accept its offer to settle the litigation, which was then on foot in the 2014 FCA proceedings and/or terminate Ms Bashour's employment.
3. Ms Bashour submitted the speed with which ANZ was proceeding down the disciplinary path and intransigence regarding the fixed appointment with Dr White raises an inference concerning its motivations.[472] The inference to be drawn is that the ANZ gave no 'thoughtful consideration' to making reasonable adjustments '...which would have allowed the applicant to continue to perform the genuine and reasonable requirements of her employment.'[473]
4. Ms Bashour referenced Lipman v Commissioner of Police and Reddy v International Cargo Express in support of her submission that an inference could be drawn about ANZ's motives based on the speed of their decision making, submitting the decision makers in these cases '...drew inferences adverse to the respondents in relation to their asserted motivation from the speed of their decision making in response to requests from their employees.'[474]
5. Ms Bashour submitted the inference to be drawn from ANZ's conduct regarding all three adjustments was '...to construct a pretext for the termination of the Applicant's employment.'[475]
6. I have made factual findings above on the direct evidence that the requirement for the adjustment to postpone the IME and the disciplinary proceedings has not been established. I have found ANZ did not fail to make the working from adjustment because consideration was still in process. Further I have found there was an insufficiency in the medical evidence and that Ms Bashour's work requirements required her attendance in the office five days a fortnight. I have found it was reasonable for ANZ to direct Ms Bashour attend an IME. I prefer the weight of the direct evidence from the witnesses and documentary evidence on which I based my findings over the drawing the proposed inferences. I do not accept that pressure was exerted on Ms Bashour to resign, as she submits, by ANZ's conduct of failing to make reasonable adjustments.[476] In the context of those findings on the facts I am not able to draw inferences the direction to attend the IME was a pretext to terminate Ms Bashour's employment.
7. Repudiation and breaching an implied contractual term of Ms Bashour's contract are contractual matters. The question is whether the respondent's failure to make reasonable adjustments caused the termination of her employment.
8. I have not found a failure to provide reasonable adjustments proven therefore I have not found discrimination under section 7(1)(b) by contravention of section 20. Therefore, there is no contravention of section 20 by the ANZ against Ms Bashour.

1. Ms Bashour makes five claims of indirect disability discrimination and submits that ANZ imposed five conditions, requirements or practices which she was unable to and/or less able to comply with because of her disabilities.
2. The five conditions, requirements or practices are:
   • it was a condition, requirement or practice of employment that ANZ required all employees of Ms Bashour's seniority and/or position to work in the office at least 1 to 2 day(s) per week;
   • it was a condition, requirement or practice of employment that ANZ required further medical evidence of disability (including, but not limited to, by way of IME) in circumstances where an employee had already provided sufficient medical evidence;
   • it was a condition, requirement or practice of employment that ANZ required that employees receive and respond to correspondence during sick leave;
   • it was a condition, requirement or practice of employment that ANZ required employees to provide responses as part of a disciplinary process during sick leave;
   • it was a condition or requirement of her employment that employees work in a hostile environment that condoned the conduct set out in Part B of her FAPOC and that failed to adequately assist persons with disabilities (Hostile Work Environment for Persons with Disabilities Condition).
3. Ms Bashour relied on the following disabilities

Between in or around April 2014 and in or around August 2014, the Applicant suffered from pelvic instability.

Between in or around late January 2014, and or in around August 2014, the Applicant suffered from ongoing migraines.

In or around July 2014 and early August 2014, the Applicant suffered from a low blood count and anaemia.

From 2014, the Applicant suffered from trauma induced major depressive disorder with co-existing anxiety spectrum symptoms and trauma induced symptoms.

From in or around July 2014 until in or around August 2014, the Applicant suffered from pregnancy-related or induced light headedness.

From in or around 2014, the Applicant suffered from recurrent severe tension-type and/or stress headaches and/or severe ongoing headaches with migraine features.[477]

1. Ms Bashour does not distinguish between which disability is relevant for which condition and pleads all disabilities for all requirements, conditions and practices.
2. Ms Bashour also makes a sixth claim of indirect pregnancy discrimination.

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

1. that has, or is likely to have, the effect of disadvantaging persons with an attribute; and
2. that is not reasonable.

(2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.

(3) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following -

1. the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;
2. whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;
3. the cost of any alternative requirement, condition or practice;
4. the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;
5. whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

(4) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

1. Indirect discrimination occurs where a person imposes (or proposes to impose) a requirement, condition or practice that has (or is likely to have) the effect of disadvantaging persons with a disability and the requirement, condition or practice is not reasonable.
2. The applicant has the burden of proof to establish a requirement, condition or practice is imposed, and the respondent then has the burden of proving the requirement, condition or practice is reasonable.
3. In Obudho v Patty Malones Bar Pty Ltd[478] Emerton J noted:

...indirect discrimination involves the imposition of a requirement, condition or practice that is 'facially neutral', but has or is likely to have 'the effect' of disadvantaging persons with a protected attribute. The condition, requirement or practice applies generally, but its impact or 'effect' is discriminatory. While direct discrimination is concerned with disparate treatment of persons based upon their having a protected attribute, indirect discrimination is concerned with the disparate impact on persons of what is a neutral condition, requirement or practice.[479]

1. The first step in a claim for indirect discrimination is to identify the requirement, condition or practice, which is construed broadly,[480] but is a question of fact and needs to be properly identified and described.
2. This requires a detailed examination of the facts of a situation to ascertain whether the operation of the requirement or condition appears on the face of it to be neutral and to apply equally to all persons, but in fact disadvantages a particular group of nominated persons such as women, or in this case, a person with a disability.[481]
3. In Waters v Public Transport Corporation[482] this was described by Dawson and Toohey JJ:

...indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such 'equal' treatment is that the former is in fact treated less favourably than the latter...The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.[483]

1. Section 9 applies when people subjected to a facially neutral requirement are adversely affected because of their protected attribute.
2. In Australian Iron & Steel Pty Ltd v Banovic[484] a 'last on first off' retrenchment policy appeared on its face to be neutral but was held to be indirect discrimination, as women were disproportionality unable to comply with the condition of having been employed before a specified date. In this case, the High Court held that the words 'requirement or condition' should be construed broadly to cover any form of qualification or prerequisite demanded by an employer of its employees, but that it is nevertheless necessary in each particular instance to formulate the actual requirement or condition with some precision.
3. In State of New South Wales v Amery,[485] the majority of the High Court found an alleged requirement or condition did not exist. A group of female teachers employed on a casual basis brought an indirect discrimination claim against the New South Wales Department of Education and Training on the grounds of sex. The relevant Act distinguished between permanent and casual staff which determined the rights and obligations of each category. Gleeson CJ stated it was necessary to identify what the Department of Education and Training did to impose the requirement rather than parliament, as it is the conduct of the Department that is in question.
4. In Bevilacqua v Telco Business Solutions (Watergardens) PL[486] the applicant, a pregnant employee experiencing severe morning sickness, failed to establish that conditions or requirements were imposed on her in the nature of having to stand at all times, only take breaks when there were no customers, move heavy boxes, take short and infrequent toilet breaks, not take sick leave, and work a full time 30 hour week. The Tribunal held there was sufficient evidence to suggest taking toilet breaks was freely permitted, employees were allowed to take personal leave, not all employees were required to lift heavy boxes, and the fact her request for a 28-hour week was rejected did not support a conclusion all full time staff were required to work full time hours. A pattern of requests and refusal would be required to prove such a requirement.
5. Further, a requirement does not have to be explicit or formal, it can be implied from the surrounding circumstances:

A respondent cannot escape responsibility for indirect discrimination by simply placing an applicant in a situation where a requirement must be met, even though that requirement is not specifically spelled-out.[487]

1. 'Disadvantage' is not defined in the EO Act. Whether the requirement, condition or practice causes disadvantage is a matter of evidence. In Hickie v Hunt and Hunt,[488] judicial notice was taken in finding women are substantially less likely than men to be able to comply with a requirement to work fulltime.
2. In Ferris v Department of Justice and Regulation[489] it was held the applicant does not have to prove the respondent was aware of the applicant's disability, or that the respondent knew unlawful discrimination would result from the requirement.

1. In terms of reasonableness, section 9(3) provides that what is reasonable depends on all the relevant circumstances of a case.
2. Reasonableness is considered in a practical rather than a theoretical way.
3. The test of whether the requirement, condition or practice is reasonable is an objective one. In Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission,[490] Sackville J stated, '[s]ince the test is objective, the subjective preferences of the aggrieved persons cannot be determinative of the reasonableness of the impugned condition requirement.'[491]

1. In her FAPOC Ms Bashour claims ANZ imposed on her the following conditions, requirements or practices:

(a) ANZ required all employees of the Applicant's seniority and/or position to work in the office at least 1 to 2 day(s) per week;

(b) ANZ required further medical evidence of disability (including, but not limited to, by way of independent medical assessment) in circumstances where an employee had already provided sufficient medical evidence;

(c) it was a condition or requirement of employment that employees receive and respond to correspondence during sick leave;

(d) it was a condition or requirement of employment that employees provide responses as part of a disciplinary process during sick leave; and

(e) it was a condition or requirement of employment that employees work in a hostile environment that condoned the conduct set out in Part B above and that failed to adequately assist persons with disabilities (Hostile Work Environment for Persons with Disabilities Condition).[492]

1. Ms Bashour claims she was unable to, and/or less able to, comply with the above conditions and/or requirements because of her disability or disabilities.[493]
2. Ms Bashour pleads that the above conditions, requirements or practices had, or were likely to have, the effect of disadvantaging persons with a disability and were not reasonable.[494] In her Particulars, Ms Bashour states:

It is more difficult for persons with a disability to survive in or comply with a hostile work environment as a result of their vulnerable health state.

It is more difficult for persons with a disability to comply with the conditions, requirements or practices set out above as a result of their vulnerable health state.

1. The respondents deny the allegations in paragraph [141(a)] to [141(d)] of the applicant's FAPOC, as stated above.
2. In respect of paragraph [141(a)], the respondents say further that:

...there was no requirement that employees of the Applicant's seniority and/or position work in the office at least one to two days a week;

At all relevant times, all employees of ANZ were required to work the hours of work specified in their contracts of employment at the locations specified in their contracts of employment. By reason of the application of the Flexible Work Arrangements Policy, an individual employee might agree with ANZ to a flexible work arrangement which might include an agreement concerning the number of hours or days required to be worked in the office or out of the office. Such arrangements were, necessarily, employee and position specific.[495]

1. In respect of paragraph [141(b)], the respondents say further that:

...ANZ required from all of its employees the provision of sufficient medical evidence of disability or illness to enable ANZ to discharge its responsibilities to protect the health and safety of all employees;[496]

1. In respect of paragraph [141(c)], the respondents say further that:

...ANZ did not impose a condition or requirement that employees receive and respond to correspondence during sick leave. The question whether a particular employee who is unfit for work is nevertheless fit to receive and/or respond to correspondence is a matter only capable of being assessed on a case by case basis;[497]

1. In respect of paragraph [141(d)], the respondents say further that:

...ANZ did not impose a condition or requirement that employees receive and respond to correspondence concerning disciplinary processes during sick leave. The question whether a particular employee who is unfit for work is nevertheless fit to receive and/or respond to correspondence concerning a disciplinary process initiated before the commencement of sick leave is a matter only capable of being assessed on a case by case basis...[498]

1. The respondents state they are unable to plead to the allegation at subparagraph 141(e) by reason of the fact that:

(a) the phrases 'hostile environment that condoned the conduct' and 'Hostile Work Environment for Persons with Disabilities Condition' are vague and incapable of being understood; and

(b) 'the conduct' which is alleged to have been 'condoned' comprises all the allegations in Part B of the Applicant's Claim (which in turn consists of all the allegations in the Applicant's Further Amended Points of Claim from paragraphs 2 to 128).[499]

1. The Respondents deny the allegations at paragraphs [142] and [143] of the applicant's FAPOC, and say further with respect to the allegations in paragraph [143] that:

...the Respondents are otherwise unable to plead to the allegations in paragraph 143 by reason of the fact that:

143.1 The Applicant has not identified the manner in which the alleged conditions of requirements were 'not reasonable' or were likely to have the effect of disadvantaging persons with a disability; and

143.2 The allegation in the particulars to paragraph 143 to the effect that it is 'more difficult' for persons with a disability 'to survive in' or 'comply with' a hostile work environment is unintelligible and incapable of being understood.[500]

First claim - requirement for employees of applicant's seniority to work in the office at least 1 to 2 day(s) per week

1. The first requirement, condition or practice claimed is that ANZ required all employees of Ms Bashour's seniority and/or position to work in the office at least 1 to 2 day(s) per week.

1. Relying on Waters, Ms Bashour submitted the requirement, condition or practice imposed on the employee by the employer does not need to be overtly articulated, and an implicit stipulation is sufficient.[501] Further, she referred to Australian Iron & Steel Pty Ltd, where Dawson J stated '...the words "requirement or condition" should be construed broadly...'[502] and Catholic Education Office v Clarke,[503] submitting that Tamberlin J's comment in this case was to the effect that the '...proper characterisation of the requirement, condition or practice required an examination of the effect of the requirement, condition or practice from the perspective of the disabled person.'[504]
2. Ms Bashour submitted that ANZ lay witness statements show the requirement alleged was one of general application to ANZ employees. The '...condition, requirement or practice was one that applied to a wider group beyond the Applicant and had ongoing effect beyond an ad hoc response to a particular incident.'[505]
3. Ms Bashour submitted '...whether such a requirement, condition or practice existed is determined according to whether or not it operated in practice, and its effect from the perspective of the person with the protected attribute.'[506] ANZ's denial of such a requirement and its assertion regarding 'employee and position specific' arrangements '...carries no weight in the face of evidence regarding the practical operation of office attendance requirements in its workplace.'[507]
4. Ms Bashour submitted at the relevant time she suffered from her disabilities and that:

The requirement that the Applicant work in the office at least 1 to 2 days per week had the effect or likely effect of disadvantaging persons with the disability suffered by the Applicant in that physically travelling to the geographic location of the office created such an impediment for persons with the disability that persons with the disability would be unable to perform at their full working potential or gain the full benefit of their employment.[508]

1. In final submissions Ms Bashour referred to Ms Babani's evidence, and her concession there was resistance within management to flexible work arrangements within ANZ.[509]
2. Ms Bashour submitted ANZ's denial of the condition is inconsistent with Ms Edelman's email dated 29 April 2014 in which Ms Bashour was threatened with disciplinary action if she did not agree to work in the office five days a fortnight. On this point, Ms Bashour submitted:

What is relevant is what is actually imposed on the disabled person in practice. Despite the existence of the Policy and assertions about fair and reasonable assessment processes, the 29 April 2014 email and the evidence of [Ms Babani] about the attitude of [ANZ] to flexible work at senior levels tell the real story of what requirements were imposed.[510]

1. Ms Bashour submitted that by reason of all six of the claimed disabilities, she was less able to comply with this requirement.[511]

1. ANZ denied imposing a requirement that all employees of the applicant's seniority and/or position work in the office at least 1 to 2 day(s) per week. It distinguished the cases of Waters and Catholic Education Office v Clarke, in that this case is not about characterisation of the requirement, but rather a factual question whether the condition was imposed.[512] If the applicant can establish the requirement, condition or practices were imposed by ANZ, that she had the attributes or disabilities claimed when the condition was imposed, and it had the effect, or likely effect of disadvantaging persons with the same disability as hers, then the burden shifts to ANZ and the respondents to prove the condition was reasonable having regard to all the relevant circumstances of the case.[513]
2. ANZ disputed Ms Bashour's submission that the requirement, condition or practice is determined from the perspective of the person with the protected attribute.
3. Alternatively, ANZ submits if the requirement was imposed (which is denied) that it was reasonable in all the circumstances.
4. In closing submissions, ANZ noted that the Flexible Work Arrangements Policy does not specify any minimum 'in office' days.[514] ANZ submits the way in which ANZ and an employee would agree to a flexible work arrangement was '...employee and position specific.'[515]
5. ANZ submitted that this process was followed, and that the lay witness statements show Ms Bashour's line managers gave careful consideration to her particular role and the needs of the business when assessing her requests to work from home.[516] Her managers proposed she could adopt the flexible work practice of two days a week from home and then agreed to vary this to five days in the office per fortnight.
6. On this basis, ANZ submitted the Tribunal should not find a requirement or condition was imposed that all employees of the applicant's seniority and/or role work in the office at least 1 or 2 day(s) per week.
7. ANZ further submitted that if the Tribunal were to find that such a requirement or condition was imposed, that it was reasonable in all the circumstances because Ms Bashour's role meant an in-person presence was necessary.[517]
8. When considering reasonableness in 'all the circumstances', ANZ submits that an important factor to bear in mind is that these events occurred in 2013 and 2014 and, although the ANZ Flexible Work Arrangements Policy commenced in 2011 and flexible working arrangements were available to ANZ employees from that time, working from home was far from common in 2013 and 2014 compared with post the COVID-19 pandemic.[518] Further, ANZ notes that in 2013-2014 working remotely meant communicating solely by telephone or email.[519]
9. With respect to the requirement, condition or practice that all employees of Ms Bashour's seniority work in the office at least one or two days a week with which Ms Bashour submits she was unable to comply because of the disability of pelvic instability, ANZ submits this is temporally confined to the period between May to 23 August 2014.[520]
10. ANZ noted that, in fact, Ms Bashour did not work in the office during the period she had the pelvic instability.
11. Finally, with respect to the pelvic instability condition, ANZ submitted that the evidence before the Tribunal, namely Dr Chew's letters, do not support a finding that Ms Bashour needed to work from home full-time for the duration of her pregnancy.[521]
12. The ANZ closing submissions consider reasonableness in the context of both section 9(3), indirect discrimination, and section 20 in terms of reasonable adjustments.

1. Although Ms Bashour claims all six disabilities, pelvic instability appears to be the most relevant to her first claim, and both her and ANZ's submissions focus on pelvic instability.

1. It is in dispute as to whether ANZ imposed a requirement, condition or practice that required all employees of Ms Bashour's seniority and/or position to work in the office at least 1 to 2 day(s) per week.
2. Ms Bashour submits an implicit stipulation is sufficient to establish the requirement, condition or practice. Waters states '...it is sufficient if a requirement or condition is implicit in the conduct which is said to constitute discrimination.'[522]
3. Ms Bashour also relied on Tamberlin J in Catholic Education Office v Clarke, submitting that whether such a requirement, condition or practice existed is determined according to whether or not it operated in practice, and its effect from the perspective of the person with the protected attribute. ANZ dispute this characterisation. I note the context of Tamberlin J's comment was in response to the characterisation of a 'condition' by Counsel for the Catholic Education Office as providing 'extra' learning support for a deaf student by way of possible note taking, rather than as a condition to participate in and receive classroom instruction without the assistance of signing or Auslan support. Tamberlin J took issue with Counsel characterising the condition as preferential treatment rather than discriminatory. The question Tamberlin J put is '...whether Jacob, as a profoundly deaf person, is required to comply with a condition with which non-deaf persons are able to comply.'[523] When stating '[t]his observation indicates the importance of the proper characterisation of the requirement from the perspective of the disabled person', His Honour was referring to the comments of Dawson and Toohey JJ in Waters who were of the view the Public Transport Corporation could not evade the implications of the Act by defining the service as 'driver only trams' when that would otherwise be a requirement or condition of the provision of the service. They found the Board had appropriately characterised the removal of conductors as imposing on users of those trams a requirement or condition that they use them without the assistance of conductors. It was in this context that Tamberlin J identified the importance of properly framing a requirement with respect to consideration of the experience of the person with disability.
4. As the requirement, condition or practice alleged here is not explicit, and its existence is disputed by ANZ, it is necessary to consider the evidence.
5. The terms of Ms Bashour's contract of employment are in the employment agreement dated and signed 19 May 2009, portions of which are extracted above at [280] and [282]. The agreement specifies the role, hours and place of work. It specifies that ANZ policies do not form part of the terms of the contract of employment.
6. The October 2013 ANZ Flexible Work Arrangements Policy provides that it applies to all employees based in Australia and New Zealand and states:

Flexible work arrangements define when and where work gets done at ANZ. It will mean something different to everyone as circumstances and priorities change and therefore require continuous collaboration between employee and line manager to ensure they are effective and continue to meet customer needs and priorities.[524]

1. The policy contains section 2, 'Flexibility Principles', and section 3, 'Types of flexible work'. Section 4, 'Eligibility', states '[a]ll ANZ employees are eligible to access flexible work arrangements in compliance with any local legal or regulatory requirements and consistent with the key principles set out in section 2.'[525]
2. There is no provision in the policy that refers to a requirement that employees at a certain level of seniority must work in the office one or two days a week.
3. Ms Bashour relies on the following examples in the evidence to assert that this requirement or condition was imposed.
4. Mr Zeman's statement wherein he states that:

In my experience as a Senior Employee Relations Advisor at ANZ, I had never heard of an employee of Ms Bashour's seniority and pay working under a flexible arrangement like the one she described. Ms Bashour was a Group 4.1 manager.[526]

1. An email from Mr Shaw to Ms Bashour dated 22 November 2013 where he stated:

In your role as a 4.1 Manager, I have an expectation that you should be engaging with business stakeholders and others in the team on a face-to-face basis frequently enough to require you to be in the office at least a few days each week.[527]

1. An email from Mr Zeman to Ms Bashour dated 2 January 2014 where he stated:

In fact, there are few (if any) roles based at ANZ Centre which would be able to flex to the extent you allege was agreed, let alone roles at your level of seniority.[528]

1. ANZ refers to evidence from ANZ staff addressing the way the Flexible Work Arrangements Policy operated, and the way Ms Bashour's line managers gave consideration to her role and the needs of the business when assessing the requests to move from two days for home, to four days from home, and ultimately five days a week.[529]
2. The High Court in Australian Iron & Steel Pty Ltd has taken a liberal approach to the identification of a requirement or condition. Dawson J stated:

Upon principle and having regard to the objects of the Act,[530] it is clear that the words 'requirement or condition' should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employees...Nevertheless it is necessary in each particular instance to formulate the actual requirement or condition with some precision.[531]

1. The Victorian legislation refers to 'practice', which invites an expansive approach to the conduct which may fall within the concept of indirect discrimination.[532]
2. In RW v State of Victoria[533] Senior Member Megay stated:

The cases make it plain that a requirement, condition or practice must be identified with precision as a respondent is entitled to know and understand what is said to have been imposed by it. It must be real, not artificially constructed and must be distilled from the evidence.[534]

1. In that case she found that the requirement, condition or practice pleaded (and the three sub conditions) failed as the condition did not have general application and was not facially neutral.
2. In this case ANZ's Flexible Work Arrangements Policy states it defines '...when and where work gets done at ANZ...'. ANZ submitted the flexible work arrangement was employee and position specific. The evidence relied on by Ms Bashour, namely, that; Ms Edelman and Mr Zeman had 'never heard of' persons of her level of seniority working from home four days a week, their remarks that few, if any, roles existed with this level of flexibility, let alone someone of her level of senior seniority, and Mr Shaw's email that her role as a 4.1 manager requires engagement with stakeholders and team members on a face-to-face basis frequently enough to require attendance at the office a few days a week, suggests a practice within ANZ.
3. Although the Flexible Work Arrangement Policy may be employee and position specific, it appears the practice was different, namely there was an expectation to work in the office one or two days a week for employees of Ms Bashour's seniority. I note Ms Edelman stated, '...I had never heard of someone in a similar position to Ms Bashour, or anyone at all for that matter, working from home four days a week.'[535]
4. Further, Ms Babani noted that '...we tended to put a lot of focus, as banks often did back in the days, on presenteeism and if you were there you must be doing a more important job...'.[536]
5. The Flexible Work Arrangements Policy is a policy with the beneficial objective to allow employees to meet their personal and career goals whilst ensuring the needs of the team and business are met. Where utilised, it moderates the default employment position of being at the workplace five days a week. The policy stipulates that flexibility at ANZ 'will mean something different to everyone' and requires 'continuous collaboration' between employer and employee. ANZ contends there is no relevant requirement or condition with respect to that policy. However, the evidence suggests that in the implementation of the policy, a condition or requirement was imposed, namely, that managers at least at Ms Bashour's level were required to be in the workplace at least one or two day(s) a week. This requirement does not appear to be linked to the section or division within which she worked but to her seniority as a 4.1 level manager. This approach is consistent with the meaning of requirement, condition or practice receiving a generous construction.
6. I am satisfied the evidence of ANZ's staff and managers support the finding of a practice requiring employees of Ms Bashour's seniority to be in the workplace one or two day(s) a week. The agreements under the Flexible Work Arrangements Policy were not as bespoke as ANZ suggested.

1. Section 9 applies when persons subjected to a facially neutral requirement are adversely affected because of their protected attribute. In her submissions, relying principally on her pelvic instability, Ms Bashour submitted that:

The requirement that the Applicant work in the office at least 1 to 2 days per week had the effect or likely effect of disadvantaging persons with the disability suffered by her in that physically travelling to the geographic location of the office created such an impediment for persons with the disability that persons with the disability would be unable to perform at their full working potential or gain the full benefit of their employment.[537]

1. In VVR v Ironfish the Tribunal noted that '[s]ection 9 only applies if the practice imposed by the respondent has the effect of disadvantaging "persons with an attribute", not just one person.'[538]
2. The 'disadvantage' Ms Bashour suffered was that because of her physical disability, namely pelvic instability, it was more painful for her to travel long distances to physically attend the workplace. This was of a temporal nature only however, from diagnosis,[539] to her maternity leave in August 2014.
3. The evidence supports the position that pelvic instability as a condition is variable in terms of the extent and severity of symptoms. Professor Wallace estimated that across his work in public practice, which sees thousands of women, and his private clinic which treats 150-200 women a year, he would see 5 or 6 women with severe pelvic instability requiring the use of a wheelchair or walking frame.[540] Therefore the disadvantage to any group of pregnant employees with pelvic instability will have significant variation and effect. Illustrating the different degrees of severity and effect, in this case Ms Bashour did not require a mobility device and her position was that she was not able to attend the workplace.
4. Defining the group that is affected by the requirement or condition is a finding of fact. Ms Bashour has not provided or pointed to evidence supporting the contention that this particular requirement, condition or practice was unable to be complied with by a group of employees at her level with pelvic instability or indeed any of the other five disabilities, as opposed to evidence that she herself could not comply with the requirement.
5. As Harbison J stated:

Although the comparator principle is no longer part of the definition of indirect discrimination in Victoria, I take the view that it is still necessary for any complainant to prove that the requirement has, or is likely to have, the effect of disadvantaging persons with an attribute.

This is because the Act says so. That use of the plural 'persons' is important. The form of words is 'the effect of disadvantaging persons with an attribute'. The section does not say in subsection 9(1) (a) 'that has, or is likely to have, the effect of disadvantaging the applicant who has an attribute'. I take the fact that this section is not cast in individual terms but is instead cast in terms of identifying a group of persons with an attribute who are or are likely to be disadvantaged by the requirement, to be an essential feature of the claim of indirect discrimination.[541]

1. There has been no evidence of other employees with a comparable disability to Ms Bashour. Given the specificity of Ms Bashour's disability and the varying degrees of severity applicable to it (and in dispute in her case), I am not satisfied Ms Bashour has established there is a pool within which she can be classed which can be compared to those employees without the disability of pelvic instability. Similarly, Ms Bashour has not established the detrimental effect of the requirement for persons with the other disabilities claimed which, but for pregnancy induced light headedness, are not claimed to impact on mobility.

Is the requirement, condition or practice reasonable?

1. In the event Ms Bashour was able to identify a group or subgroup of persons disadvantaged by the requirement or condition, the burden rests with the ANZ to prove the condition, requirement or practice was reasonable. Section 9(3) stipulates matters to be taken into account when determining whether a requirement, condition or practice is reasonable.
2. I am satisfied ANZ, bearing the burden, has established the requirement, condition or practice was reasonable. I take into account the relevant circumstances of the case, and I have regard to the factors in section 9(3).
3. The test for reasonableness is objective. Given the test is objective, case law has noted the subjective preferences of the aggrieved persons cannot be determinative of the reasonableness of the impugned condition or requirement.[542] I take into account what was reasonable for ANZ's business needs in terms of 'the activity or transactions' it is engaged in. ANZ's evidence of its senior managers was that a physical presence in the workplace was required to engage with stakeholders, effectively participate in meetings dealing with complex issues, interact with other employees part of the ADC team, and influence and lead them.
4. Ms Edelman stated that in her view an arrangement for Ms Bashour to work from home four days '...was not compatible with the requirements of her role.'[543] She detailed Ms Bashour's day to day duties as providing regulatory compliance advice to internal stakeholders and assisting to manage the Australia Division of ANZ's relationship with the regulator. Ms Edelman stated '[h]er duties required her to interact with and influence people on a daily basis. That required more time in the office than Ms Bashour was devoting.'[544] In Ms Edelman's opinion, Mr Shaw's proposal for Ms Bashour to work from home five days a fortnight, that the particular days in the office could be varied, and she could leave at 4pm on office days, was a '...reasonable compromise which would allow Ms Bashour to fulfil her responsibilities and meet business needs, while still offering her significant flexibility.'[545]
5. Mr Harman was Ms Bashour's line manager when she returned to work after parental leave in April 2013. After Ms Bashour proposed working from home two days a week, and leaving by 4pm on her office days, Mr Harman agreed, stating that at the time he considered it feasible for her to work two days from home. However, he stated that an arrangement whereby Ms Bashour worked from home more than two days a week would have presented difficulties because the ADC team supports the Australia Division of ANZ and the majority of internal clients and stakeholders are based at Docklands. Internal clients would often walk down to where the ADC team sat and ask for compliance advice, and it was in this way work was fielded from the business and connections were made. Not only would Ms Bashour miss out on that work, but it would also fall disproportionately on those present in the office. Further, a presence in the office built relationships with team members. Mr Harman stated face to face contact builds good compliance outcomes because advisers need to understand business objectives and have the capacity to influence. Given the enquiries and requests for advice coming into the team, it would be more difficult to manage the team workload and oversee Ms Bashour's work if she was working from home three or more days a week.[546]
6. In his statement Mr Shaw stated that:

In my view, an arrangement where a Group 4.1 manager is in the office one day per week is not workable or realistic. The business that we support (Australian Division) is almost entirely based in the ANZ Docklands building. In our area, events often occur at short notice, such as meetings with regulators. We generally meet with representatives of the business a number of times in advance of these meetings to make sure that we are adequately prepared.

I do not consider attendance at these meetings via teleconference as an effective substitute for attendance in person when dealing with complex issues. In my experience, it is difficult to participate in a discussion over the telephone, let alone influence the outcome, which our team is expected to do. This is particularly so where all other attendees are in the room and one participant dials in by telephone...The reality of Ms Bashour's Group 4.1 position was that, to be done effectively, it required a degree of visibility that one day's attendance per week could not afford. Ms Bashour was expected to engage with stakeholders and proactively consider potential compliance issues.[547]

1. Mr Shaw also referred to delegating attendance at meetings to his direct reports, often at short notice. He stated that, in a small team, if she was not in the office it was difficult to delegate work effectively.[548]
2. Ms Bashour's evidence in chief disagreed with Mr Shaw and Mr Harman's evidence as to why her presence in the office was required. Disputing Mr Shaw's evidence about the nature of interactions in the office, Ms Bashour stated:

People simply do not walk by...We were an advisory function in a very big bank with wings and 10 floors were (sic) people were scattered, where people had conflicting diaries, where people did not know there were break-out rooms, there were meeting rooms. People were not familiar with seating arrangements. Also, we were not front line compliance. There is a difference between operational compliance. We were advisory, we were regulatory change so unless someone had a question about a regulatory or a policy change, we were not engaged on a daily basis. Our engagement was formal, was slow. There was lead up times, notices of processes because if teams were relying on things we said and there was an issue and they were audited, a simple (indistinct) or a casual connection would not suffice, would actually be in breach in the way we were engaged.[549]

1. I prefer the evidence from Ms Edelman, Mr Shaw and Mr Harman regarding the requirements of the Group 4.1 manager's role to have a visible presence in the workplace. I note a significant degree of the ADC work was transactional, but that does not reduce the value of the face-to-face contact, nor managers having the ability to delegate more easily and fairly when someone is actually in the office. The evidence from Ms Edelman notes comments that were made to her querying whether Ms Bashour had left ANZ when she was working from home due to her significantly reduced visibility in the office.[550] Whilst technology has greatly improved, in 2013 and 2014 the practice of dialling into a meeting by phone was a less effective communication tool to nowadays. I accept the view that the capacity and ability to 'interact and influence' with other business units was dependent on face-to-face contact.
2. In 2013 and 2014, working from home five days a week was not typical, and the technology to support it was not commonly used beyond email and telephone for 'dialling in' to meetings. ANZ appeared to use software called 'teleconference' for dial-in meetings. From looking through the evidence it seems it did have videoconference capability, but that this was used in the office, whereas the telephone function was predominantly used when working remotely. The evidence is of Ms Bashour getting meeting numbers, conference codes and teleconference details when working from home, and not videoconference invitations.[551]
3. With respect to section 9(3)(a), the disadvantage resulting from the imposition of the practice meant physically attending the workplace, which is not a significant disadvantage, when compared to being laid off, or having a negative variation to terms and conditions of employment or salary rate, or not getting a benefit other employees receive.
4. With respect to section 9(3)(b), the disadvantage is proportionate to the result sought by the imposition of the practice, namely the benefits to the employee's employment and the business requirements of the compliance division within ANZ to engage with business stakeholders and proactively consider potential compliance issues. These benefits are detailed in the evidence of Mr Harman, Ms Edelman and Mr Shaw above.
5. With respect to section 9(3)(c), the costs of an alternative and (d) the financial circumstances of ANZ are not particularly relevant because in this case it is the value of the face-to-face contact, by being physically in the office, that is the reason for the 'practice', which cannot be substituted for financially.
6. With respect to section 9(3)(e), given the general application of the practice, namely requiring managers at Group 4.1 level to be present in the office one or two days a week, it is difficult to conceive a substitute or an alternative 'reasonable accommodation' for the intrinsic value of a face-to-face physical presence in the workplace.
7. Given the commercial activity of ANZ and the nature of the business of the ADC, I find it was reasonable to impose the practice of requiring attendance in the office 1 to 2 day(s) per week for managers at Ms Bashour's level in order for ANZ to perform the workplace activities described.
8. Indirect discrimination in section 9(1) refers to a requirement, condition or practice that applies generally but its effect is discriminatory and disadvantages persons with an attribute. Ms Bashour established there was a requirement, condition or practice, but did not identify that it disadvantaged persons with an attribute, as opposed to herself. In the event that she was able to identify a cohort of persons with an attribute, I am satisfied, on the balance of probabilities, having regard to the relevant circumstances in section 9(3), ANZ has established the requirement, condition or practice was reasonable.

Second claim - requirement to produce further evidence of disability in circumstances where an employee had already provided sufficient medical evidence

1. This claim relates to the requirement, condition or practice that ANZ required further medical evidence of disability (including, but not limited to, by way of IME) in circumstances where an employee had already provided sufficient medical evidence.

1. Ms Bashour submits that ANZ imposed this requirement on her and, by their own evidence, described it to her as 'one of general application'.[552]
2. She submits evidence from Ms Thomas and Mr Zeman show the requirements to provide medical evidence '...were ones which applied generally to [ANZ's] employees.'[553] When responding to Ms Bashour's complaint dated 14 June 2014 Ms Thomas stated, the requests for medical evidence were '...in accordance with ANZ's standard approach...'.[554] Mr Zeman stated the requests were '...consistent with ANZ's general approach.'[555]
3. Ms Bashour submitted:

The requirement to provide excessive medical information of disability disadvantages persons with such disabilities because such demands create additional burdens and stressors in circumstances where persons with these disabilities have depleted physical resources to deal with such burdens and stressors.[556]

1. ANZ denies imposing this requirement. ANZ submits it did require the provision of sufficient medical evidence to discharge its responsibilities to protect the health and safety of all employees.[557]
2. ANZ submits that the requests Ms Bashour provide medical evidence regarding her fitness for work and attend an IME were made in circumstances where, on an objective assessment, ANZ needed the material to discharge its statutory health and safety obligations.[558]

1. Ms Bashour has not particularised the further medical evidence of disability (including, but not limited to, by way of independent medical assessment) in circumstances where an employee had already provided sufficient medical evidence.
2. The requests by ANZ for medical evidence were as follows. There were three requests for a fitness for work certificate, however these related to her fitness for work as opposed to evidence of her disability. Ms Edelman also asked Ms Bashour to provide medical evidence in support of her requirement to 'hot desk' away from the team and her requirement not to have face to face meetings with Ms Edelman. When Ms Bashour advised Ms Edelman she would be working from home five days a week owing to pelvic instability, Ms Edelman, by email dated 21 May 2014, sought further information from Dr Chew, and when that was not forthcoming, repeated her request in her email dated 3 June 2014 together with proposing some adjustments. Following Dr Chew's letter dated 30 June 2014, on 4 July 2014 Mr Zeman directed Ms Bashour to attend the IME.
3. ANZ pleads that it has a requirement that sufficient medical evidence be provided in order to discharge its responsibilities to protect the health and safety of all employees. Otherwise, it denies the imposition of a requirement, condition or practice under section 9 in the manner pleaded by Ms Bashour.
4. Ms Bashour bears the onus to establish there was a 'requirement, condition or practice' as pleaded.
5. In my view of the evidence, Ms Bashour's claim has not been formulated to identify a 'requirement, condition or practice.' It is conceded by ANZ there is a requirement that employees provide medical evidence so that employers can comply with health and safety requirements for all employees. Ms Bashour's characterisation of the condition includes a sub condition, that the requirement applied in circumstances where an employee had already provided sufficient medical evidence. In submissions she described the requirement as having to provide excessive medical information.
6. The evidence referred to in support of the applicability of this sub condition is specific to Ms Bashour.
7. In Abela v State of Victoria Tracey J cautioned about the use of qualifying adjectives in the formulation of the condition:

The introduction of qualifications which require a respondent and the Court to form a judgment, not about whether or not a particular condition has been imposed, but rather whether a service has been provided at a particular standard or quality, tends to imprecision.[559]

1. In my view the sub condition 'where an employee has already provided sufficient medical evidence' qualifies the requirement, condition or practice. It requires speculation regarding the meaning of 'sufficient medical evidence'.
2. Further, Ms Bashour has not pointed to evidence that the requirement, condition or practice was imposed on a cohort or had the effect of 'disadvantaging persons with an attribute' rather than being specifically referrable to her.
3. Indirect discrimination in section 9(1) refers to a condition that applies generally but its effect is discriminatory. Ms Bashour has not established there was a condition that disadvantaged persons with an attribute. The condition formulated regarding the requirement to provide further medical evidence of a disability is qualified in that it applied in circumstances where an employee is required to produce further evidence of a disability when they had already provided sufficient medical evidence. The references to 'further medical evidence' and 'sufficient medical evidence' qualify the condition and require judgment not about whether a condition has been imposed, but the extent to which medical evidence has been provided or is required.
4. The alleged requirement, condition or practice should not rely on being tailored to individual circumstances by qualifying clauses. Further, even if the clauses were not qualifying, the condition as drafted appears to apply specifically to Ms Bashour rather than applying generally to persons with an attribute.
5. For these reasons, I am not satisfied on the balance of probabilities Ms Bashour has established the existence of a requirement or condition which is facially neutral and applies generally under section 9(1).

Third claim - requirement to receive and respond to correspondence during sick leave

1. Ms Bashour claims it was a condition or requirement of employment that employees receive and respond to correspondence during sick leave.
2. There appears to be an overlap with the fourth claim which is a condition, requirement or practice that ANZ required employees to provide responses as part of a disciplinary process during sick leave. However, as they are pleaded separately, I will consider each separately.

1. Ms Bashour submits the requirement as it related to correspondence on sick leave was described to her by ANZ's Human Resources as '...one of general application.'[560] She claims her six disabilities as set out in her FAPOC at paragraph [142].
2. In support, Ms Bashour refers to a complaint letter dated 14 July 2014 which she sent on 15 July 2014 to Mr Zeman, Ms Babani and Ms Patterson objecting to '...harassing correspondence from Mr Zeman while she was on sick leave.'[561] On 16 July 2014, Ms Thomas responded stating the approach taken by Mr Zeman was '...reasonable and in accordance with ANZ's standard approach...'.[562]
3. She further submits:

The requirement to receive and respond to correspondence during sick leave disadvantages persons with such disabilities because the requirement to correspond with the employer during sick leave creates an additional stressor which bears more heavily on persons with the disabilities suffered by the Applicant.[563]

1. Ms Bashour also referred to a report dated 13 September 2019 from her treating psychologist Dr De Pino that she was:

...likely to have experienced significant difficulty in receiving and responding to communication from her employer both generally and whilst on sick leave, if the content of such communications was perceived as a further threat to her physical health and the physical health and safety of her unborn child.[564]

1. ANZ submitted it did not impose a requirement that employees receive and respond to correspondence while on sick leave.[565]
2. Further, citing Swanson v Monash Health, ANZ submitted being on sick leave does not suspend the employment relationship.[566]ANZ submitted that '[i]n appropriate circumstances, an employer may be required to communicate with, and to require a response from, an employee who is absent from work on sick leave, including about their capacity to return to work and safely perform their duties.'[567] Whether Ms Bashour was capable of responding to correspondence is determined having regard to all relevant circumstances, including medical evidence provided by her, and her own conduct.[568]

1. Mr Zeman's email dated 14 July 2014 to Ms Bashour directed her to attend the appointment with Dr White on 15 July 2014. He noted Ms Bashour's email dated 11 July 2014 as to why she could not attend the appointment was '...vague and is not supported by medical evidence, even though it is based on medical grounds.'[569]
2. This is the email Ms Bashour complains of in her 'complaint' letter dated 14 July 2014, addressed to Mr Zeman and emailed to him, Ms Babani and Ms Patterson on 15 July 2014. She states:

Also, I am uncertain what right you have to ask to me attend a medical appointment whilst I am away sick. This level of intrusion is extraordinary.

I am afraid that these ongoing requests are not bona fide and are made in bad faith due to the complaints I have made against ANZ and against you personally.[570]

1. Ms Bashour further notes '...the action of directing me to see a doctor whilst I am on sick leave (pursuant to a valid medical certificate) is unreasonable.'[571]
2. She concluded:

This treatment is driving me to the point of distraction. I have a young child to care for, a full time job and an unborn child to consider not to mention my own wellbeing.

I request that this complaint be handed to another Employee Relations representative and please refrain from communicating with me whilst I am trying to recover.[572]

1. Ms Thomas reviewed the complaint and responded by email dated 16 July 2014. She advised she had reviewed the matters in Ms Bashour's letter and the relevant correspondence between Ms Edelman, Mr Zeman and Ms Bashour. She advised:

...the approach taken in relation to seeking medical evidence from you, and the direction to attend an independent medical assessment, were reasonable and in accordance with ANZ's standard approach; and

Daniel will continue to be the Employee Relations contact for this matter.[573]

1. The claim states at paragraph [141(c)] it was a condition or requirement of employment that employees receive and respond to correspondence during sick leave. This requirement, condition or practice is denied by ANZ, save for the submission there may be appropriate circumstances when an employer contacts an employee on sick leave.
2. The onus is on Ms Bashour to establish the requirement, condition or practice.
3. Ms Bashour's pleadings refer to the complaint she made dated 14 July 2014 and sent on 15 July 2014. In that letter she refers to Mr Zeman's email dated 14 July 2014 and 'other correspondence related to this matter'. This letter refers to:
   • the request by Ms Edelman dated 21 May 2014 for a medical report from Dr Chew responding to ANZ's requests;
   • Ms Bashour's email dated 19 June 2014 'escalating' the matter to Ms Babani and Ms Evans;
   • Ms Babani's email dated 20 June 2014 advising Ms Bashour her enquiry had been passed onto Employee Relations;
   • Mr Zeman's email dated 23 June 2014 to Ms Bashour advising her he had been assigned the matter.
   • Ms Bashour's email dated 30 June 2014 providing Dr Chew's letter dated 30 June 2014;
   • Mr Zeman's letter dated 4 July 2014 to Ms Bashour directing attendance at an independent medical assessment;
   • Mr Zeman's email dated 14 July 2014 maintaining that the direction to attend the independent medical assessment is reasonable and lawful; and
   • Ms Bashour also states, 'I have now provided Liana with further medical certificate covering the next fortnight.'[574]
4. Aside from three pieces of the correspondence responding to Ms Bashour's complaint, the other pieces of correspondence involve Ms Edelman seeking medical information, Ms Bashour sending through Dr Chew's letter dated 30 June 2014 and Mr Zeman making the directions for her to attend an independent medical assessment on 4 and 14 July 2014.
5. Whether a requirement has been imposed is a question of fact, to be construed broadly, however it needs to be formulated with some precision. Tracey J notes that '[i]n many cases this will not be difficult because the applicant will be relying on some written rule or prerequisite which has been formulated by the respondent.'[575] In this case, Ms Bashour submits correspondence from Ms Thomas dated 16 July 2014 refers to the requirement to engage in correspondence during sick leave as 'reasonable and in accordance with ANZ's standard approach.'
6. Where it is reasonable to do so, an employer can contact an employee during their leave to seek information or make directions. As Swanson v Monash Health states, the contract of employment continues during periods of leave.[576] In Cederman v Oleochem DP Beaumont found in the circumstances of that case that '...the correspondence between the parties during the Applicant's pregnancy and into her postpartum period was exhaustive...'[577] and the respondent's insistence on clarification of her return-to-work date was unreasonable. DP Beaumont noted '[t]he Applicant was on parental leave and such leave should have been respected.'[578]
7. The evidence pleaded is that Ms Bashour received and responded to correspondence on sick leave. Some of this correspondence was in relation to her complaint, and other correspondence related to requested medical material or a medical assessment. The evidence of Ms Thomas' email in response to Ms Bashour's complaint dated 16 July 2014, points to this being a condition of general application on all employees on sick leave. Ms Turner's email states '...the approach taken in relation to seeking medical evidence from you, and the direction to attend an independent medical assessment, were reasonable and in accordance with ANZ's standard approach...'.[579] The 'standard approach' relied on by Ms Bashour with respect to the requirement to engage in correspondence, supports her claim there was a general condition, or 'standard approach' by ANZ that employees on sick leave are required to engage in correspondence.

1. The requirement or condition must appear facially neutral but have the effect of disadvantaging employees with Ms Bashour's disability. Ms Bashour's submission on this point states:

The requirement to receive and respond to correspondence during sick leave disadvantages persons with such disabilities because the requirement to correspond with the employer during sick leave creates an additional stressor which bears more heavily on persons with the disabilities suffered by the Applicant.[580]

1. Ms Bashour has not identified a group of 'persons with an attribute' namely the persons with disabilities suffered by the applicant. Not all employees on sick leave will necessarily have an attribute under section 6(e) of the EO Act. In some cases, persons who are disadvantaged by a requirement or condition will be easily identifiable, or judicial notice can be taken of a group. That is not the case here, and there is no evidence or statistics provided to identify the persons disadvantaged with Ms Bashour's attributes within the group of employees on sick leave.

Is the requirement, condition or practice reasonable?

1. In the event Ms Bashour did establish that the requirement was facially neutral and had the effect of disadvantaging persons with a specified attribute, ANZ submitted the requirement was reasonable.
2. Section 9(3) provides that whether the requirement is reasonable depends on all the circumstances of the case.
3. In some circumstances, where it is reasonable, the case law supports that an employer can make contact with an employee for the purposes of obtaining further medical information.[581]
4. With respect to whether the requirement to receive and respond to correspondence whilst on sick leave is reasonable, in Ms Bashour's case, the correspondence from ANZ was not trivial or malicious. It was for the purposes of ascertaining the extent of Ms Bashour's illness and how it impacted on her ability to attend the workplace, as well as responding to her complaints.
5. With respect to section 9(3)(a), the disadvantage resulting from the imposition of the practice means employees who are on sick leave have to respond to emails and potentially obtain further medical evidence and attend an IME. The correspondence may also be to ascertain when an employee is returning to work or responding to an employee's complaints.
6. With respect to section 9(3)(b) whether the disadvantage is proportionate to the result sought by the imposition of the practice depends on whether the correspondence is for a legitimate, relevant purpose by the employer.
7. With respect to section 9(3)(c) the costs of an alternative and (d) the financial circumstances of ANZ, these are not particularly relevant as the medical information could only be provided by Ms Bashour.
8. Section 9(3)(e) requires consideration of whether reasonable adjustments or accommodation could be made to the requirement to reduce the disadvantaged caused. An alternative way to obtain medical information was for the employer to contact the doctor directly, with the consent of the employee. In this case, ANZ requested this, and Ms Bashour declined to provide consent. This was a reasonable adjustment which would have saved the need for the employee to respond to a direction whilst on sick leave. It is unclear what other reasonable adjustment could have been offered.
9. In all the circumstances of the case including the factors in section 9(3), I find the requirement was reasonable.
10. Indirect discrimination in section 9(1) refers to a requirement, condition or practice that applies generally but its effect is discriminatory by disadvantaging persons with an attribute. This requirement, condition or practice as formulated by Ms Bashour is that employees on sick leave have to receive and respond to correspondence. Ms Bashour has not identified how this disadvantages persons with an attribute, other than herself. However, if she had been able to identify persons with an attribute who are disadvantaged by the requirement condition or practice, I am satisfied on the balance of probabilities having regard to all the relevant circumstances of the case and the factors in section 9(3) that the condition is reasonable. For these reasons, ANZ has not contravened section 9 and has not indirectly discriminated against Ms Bashour.

Fourth claim - requirement to respond to disciplinary process during sick leave

1. Ms Bashour claims at paragraph [141(d)] of her FAPOC 'it was a condition, requirement or practice of employment that [ANZ required] employees to provide responses as part of a disciplinary process during sick leave'.

1. Ms Bashour submits that '[e]vidence regarding the behaviour of the First Respondent towards its employees indicates that such a requirement was imposed on the Applicant and described by its human resources representative as "consistent with ANZ's approach for such matters".'[582]
2. Ms Bashour further submits:

...any requirement to receive and respond to correspondence during sick leave disadvantages persons with the disabilities suffered by the Applicant. Providing responses as part of a disciplinary process during sick leave creates an even more burdensome additional stress on persons with increased sensitivity to such stressors.[583]

1. Ms Bashour submits the evidence of Dr Phillips in his report dated 28 August 2019 was that '...the state of the Applicant's psychological health was such that at the relevant time, mid 2014, the Applicant would not have been able to receive and/or respond to correspondence from the First Respondent.'[584]
2. Dr Phillips referred to the fact that a person in a state of emotional turmoil can experience transitory or short term cognitive symptoms which can be characterised by concentration/memory difficulties, loss of cognitive focus, a general clouding of thinking and difficulties with executive function.[585] Ms Bashour submits the requirement to respond to a disciplinary process during sick leave, has or is likely to have the effect of disadvantaging herself and persons with her disabilities.[586]

1. ANZ submits the Tribunal should find that ANZ did not impose a requirement Ms Bashour respond to the disciplinary process while on sick leave.[587]
2. ANZ repeated its submissions regarding the third claim, the requirement that employees receive and respond to correspondence during sick leave.[588]
3. ANZ submitted after receiving Dr Crimmins' letter dated 23 July 2014, recommending that all correspondence '...should cease in order for her to recuperate properly and complete her pregnancy healthily...',[589] ANZ deferred the need for Ms Bashour to respond to the disciplinary letter of 16 July 2014.
4. ANZ submitted it was only on becoming aware that Ms Bashour had responded to correspondence from ANZ's solicitor in the Federal Court proceedings, that ANZ revisited the decision on 4 August 2014. ANZ submits this is consistent with its case by case approach to assessing whether an employee is capable of receiving correspondence while on sick leave. Further, ANZ submits that as at 4 August 2014, Ms Bashour was on parental leave, not sick leave.[590]

1. ANZ's disciplinary process was commenced by Mr Zeman's letter dated 16 July 2014. The reference to Ms Thomas's response dated 16 July 2014 as being consistent with ANZ's approach for such matters is in response to Ms Bashour's complaint about 'the approach taken in relation to seeking medical evidence from you, and the direction to attend an independent medical assessment', not the disciplinary process.
2. After receiving Dr Crimmins' certificate dated 23 July 2014, Mr Zeman sent an email dated 24 July 2014 to Ms Bashour stating '...ANZ will not require your response by 12noon tomorrow.' The email also noted that '...the unacceptable behaviour process remains on foot, and this further opportunity to respond cannot be held open indefinitely.'[591] This letter appears to suspend the disciplinary process temporarily. The process was re-opened on 4 August but, at this time, Ms Bashour was on maternity leave, and so it is not considered as part of this claim.
3. Ms Bashour relies on the 16 July 2014 email from Ms Thomas referred to above to support her claim that ANZ had a requirement to respond to a disciplinary process during sick leave, namely it was 'consistent with ANZ's approach for such matters.' This is factually incorrect. As noted above, Ms Thomas was responding to Ms Bashour's complaint about ANZ seeking medical evidence and the direction to attend the IME. As at the time of Ms Thomas's email the disciplinary process had not started.

1. The condition, as formulated, claims to be one of general application of an alleged requirement to respond to the disciplinary process imposed by ANZ on employees while on sick leave.
2. The case law supports a liberal or expansive approach to determining what constitutes a requirement, condition or practice to ensure that the objects of the legislation are achieved. The formulation of the condition is ultimately a question of fact but need not be explicit.
3. There is no evidence, beyond Ms Bashour's personal experience of receiving the relevant disciplinary correspondence, to support the claim that ANZ imposed a rule or policy that applied equally to all employees on sick leave which required they respond to a disciplinary process during their sick leave.
4. In Abela v State Of Victoria Tracey J, referring to section 6 of the Federal Disability Discrimination Act 1992 (Cth), stated section 6 is concerned with '...requirements or conditions which have general application but which bear oppressively on a particular cohort or group which the legislation is designed to protect.'[592] In that case the evidence concerned how deficiencies in services provided by the Department of Education and Early Childhood Development impacted on a student as an individual, and there was no attempt to identify a target group with the same disability.
5. Similarly to the applicant in Abela v State of Victoria, Ms Bashour alleges ANZ acted in particular ways in response to her particular disability, namely by requiring a response to the disciplinary process on sick leave. However, no cohort or group to whom this condition applied has been identified by the evidence.
6. Indirect discrimination in section 9(1) refers to a requirement, condition or practice that applies generally but its effect is discriminatory. Ms Bashour has not established there was a requirement, condition or practice that disadvantaged persons with an attribute, as opposed to herself. Her reliance on Ms Thomas' statement is also factually incorrect.
7. For these reasons I am not satisfied on the balance of probabilities Ms Bashour has established a requirement, condition or practice which is facially neutral for the purposes of section 9(1).

Fifth claim - 'Hostile Work Environment for Persons with Disabilities' Condition

1. Ms Bashour claims it was a condition or requirement of her employment that employees work in a hostile environment that condoned the conduct set out in Part B of her FAPOC and that failed to adequately assist persons with disabilities ('Hostile Work Environment for Persons with Disabilities Condition').

The notion that exposing employees to a series or composite of events, behaviour, customs or routine occurrences in a workplace, which are of their nature hostile, demanding or oppressive, can together amount to a work environment which bears more onerously on an employee with a particular attribute, has been considered and recognised in: Hill v Water Resources Commission (1985) 14 IR 158, Poniatowska v Hickingbothan [2009] FCA 680; and Stanley v Service to Youth Council Incorporated [2014] FCA 643.[593]

1. Ms Bashour submitted that there is no basis for ANZ to allege imprecision regarding the condition, requirement or practice. The Factual Background set out at Part B of the FAPOC '...explains in detail the behaviour and events which were condoned by the Respondents and in relation to which persons with disabilities were offered inadequate assistance.'[594]
2. It is submitted that the Hostile Work Environment for Persons with Disabilities Condition, by its very nature, has the effect of disadvantaging persons with the same disabilities as Ms Bashour.[595]
3. In closing submissions, Ms Bashour does not reference the Hostile Work Environment for Persons with Disabilities Condition. In reply to ANZ's submission that they assume this claim is no longer pressed, Ms Bashour submitted that ANZ '...should not assume that this limb of the Applicant's claim is no longer pressed.'[596]

1. ANZ notes the requirement, condition or practice must be identified with precision and must apply to an identifiable cohort. Further, it is up to the applicant to satisfy the Tribunal that a condition has been imposed, and then the burden will shift to the respondent to provide that any condition or requirement was reasonable.[597]
2. ANZ denied it imposed a Hostile Work Environment for Persons with Disabilities Condition, and submits the allegation is so vague and unclear it is incapable of being pleaded to.[598] In the alternative, if the requirement or condition was imposed (which is denied), ANZ submits the requirement was reasonable in all the circumstances.
3. ANZ submits the three cases relied upon by Ms Bashour do not support the proposition that an employer can impose a condition of a hostile work environment.[599]
4. ANZ distinguishes the facts in Hill v Water Resources Commission[600] where the phrase 'hostile' was used to describe the employment environment. In Hill, the complainant had been subject to a catalogue of offensive, vile behaviour in the nature of sexual harassment, substantially different from the events in this case.[601]
5. ANZ rejected Poniatowska v Hickinbotham[602] and Stanley v Service to Youth Council Incorporated[603] as authority to support the proposition that a hostile work environment is capable of constituting a detriment within the meaning of the EO Act. In Poniatowska, Mansfield J found the workplace was 'robust' and involved the use of coarse language. She stated she was not asked to find the work environment was 'sexually hostile' and beyond that did not accept the more general contention. Further, in Stanley, White J was not satisfied the emotional effect claimed by the applicant amounted to a detriment.
6. ANZ submits Ms Bashour has overstated the jurisprudence in relation to whether a 'hostile work environment' is capable of constituting a detriment within the EO Act.[604]

1. Ms Bashour refers to conduct set out in Part B Factual Background of her FAPOC as constituting the Hostile Work Environment for Persons with Disabilities Condition.
2. Although there are a number of bolded defined terms in the FAPOC, there is no 'hostile work environment' term.
3. Ms Bashour in submissions stated 'The Factual Background' in Part B of her FAPOC '...explains in detail the events and behaviour which were condoned by the Respondents and in relation to which persons with disabilities were offered inadequate assistance.'[605]
4. The Part B Factual Background covers a period from March 2010 to 9 November 2016. The incidents Ms Bashour relies on in support of this condition are not specified. The reference to people with disabilities being 'offered inadequate assistance' is not defined. There are no examples provided or references to specific paragraphs in Part B. There are no examples of incidents in Part B that refer to people with disabilities being offered 'inadequate assistance.'
5. In Hill, the Equal Opportunity Tribunal of New South Wales held it was absolutely clear on the evidence, which was not in dispute, '...that the acts of harassment complained of by Ms Hill occurred...'.[606] Further, the Tribunal had '...no hesitation in concluding that the employer condoned the continuing and increasingly damaging hostile work environment which was a feature of Ms Hill's conditions of work.'[607] The Tribunal found the employer contravened section 25(2)(c) of the Anti-Discrimination Act 1977 (NSW) '...because to have to endure the hostile working environment was a "detriment" to which she was subjected...'.[608]
6. The claim included a claim for direct discrimination on the ground of sex and alleged harassment by male employees. The evidence consisted of Ms Hill detailing a number of incidents and behaviours which included 'the fish incident', 'the hot cross bun incident', nuisance phone calls, an anonymous threatening letter, offensive material sent to her via the internal mail system, pictures of naked women on the notice board and the destruction of equal opportunity notices. The Tribunal referred to the great number of incidents making up the pattern of harassment. A witness at the hearing, Mr Dillon, referred to the 'hostile environment' and 'enormous pressure' and this, the Tribunal stated, '...provide[d] strong support for the proposition, central to the complainant's case on harassment, that she was required to work in conditions which exposed her to a hostile work environment.'[609]
7. In Poniatowska, Mansfield J, in a claim under the Sex Discrimination Act 1984 (Cth), found the employer had discriminated against Ms Poniatowska on the ground of her sex because, by reason of her sex, she was treated less favourably than a male person in the same or not materially different circumstances.[610] However, Mansfield J did not accept the general contention she was 'suffering of a sexually hostile working environment'.[611]
8. Ms Poniatowska detailed the inappropriate conduct relied on including unwanted sexual advances, sexual comments, messages and phone calls, requests to secure business through engaging in sex, and rostering with a male employee whom she had requested not to work with, in support of her claim for sexual discrimination and sexual harassment. However, the judge was not satisfied there was a 'sexually hostile working environment.'
9. Stanley does not appear to be relevant. In that case the applicant's claim under the Australian Human Rights Commission Act 1986 (Cth) was unsuccessful.
10. In contrast to this claim for indirect discrimination, both Hill and Poniatowska were cases of direct sexual discrimination and harassment under the Anti-Discrimination Act 1977 (NSW) and Human Rights and Equal Opportunity Commission Act 1986 (Cth) respectively. Stanley was also a claim for direct discrimination and for termination of employment on the basis of pregnancy, parental leave or family responsibilities under the Australian Human Rights Commission Act 1986 (Cth).
11. In this case Ms Bashour has pleaded the history of her case in Part B Factual Background of the FAPOC which extends temporally from 2010 to 2016, as evidence of the hostile work condition.
12. In evidence in chief Ms Bashour spoke of her relationship with Mr Shaw in February 2014 and stated '...Mr Shaw is not speaking to me, I haven't spoken to him for months at that stage and there is a very, very hostile work relationship.'[612] She asserts that this is because she followed the dispute settlement process.
13. Ms Bashour also described the workplace as being '...completely over scrutinising, aggressive.'[613]
14. Ms Bashour was on notice from ANZ regarding alleged imprecision of this condition.[614] In response, Ms Bashour contended 'The Factual Background set out at Part B of the Applicant's Amended Points of Claim explains in detail the behaviour and events which were condoned by the Respondents...'.[615]
15. There is no indication as to which parts of Part B Factual Background she relies on in support of the evidence establishing the Hostile Work Environment for Persons with Disability Condition. The 'behaviour and events' detailed in Part B Factual Background have no similarity to the events detailed in cases such as Hill or Poniatowska.
16. The onus is on Ms Bashour to establish the nature of the requirement, condition or practice and the effect of disadvantaging persons with her disability attributes.
17. By relying on Part B Factual Background of the FAPOC (123 paragraphs and 28 pages) and not particularising what is meant by 'Hostile Work Environment for Persons with Disability' or clarifying in submissions which particular parts of Part B are relied upon, the alleged requirement, condition or practice is imprecise. Further, there is no evidence of the general application of the claimed condition disadvantaging persons with an attribute because Part B is only referrable to Ms Bashour's experience of behaviours and events. There is no evidence of ANZ imposing such a requirement, condition or practice that had the effect of disadvantaging employees with Ms Bashour's disability attributes.
18. Indirect discrimination in section 9(1) refers to a condition that applies generally but its effect is discriminatory. Ms Bashour has not established there was a condition that disadvantaged persons with an attribute. The Hostile Work Environment for Persons with Disabilities Condition is too imprecise. Although the case law allows that a requirement, condition or practice can be construed broadly, it is a question of fact and needs to be properly identified and described. The applicant has the burden of proof to establish a requirement, condition or practice is imposed and I am not satisfied on the balance of probabilities Ms Bashour has discharged her onus under section 9(1).

Section 18 Area of prohibited discrimination

1. Ms Bashour claims that the conditions, requirements or practices imposed by ANZ:
   • were part of a course of conduct engaged in by ANZ which was cumulatively inimical to the continuation of the Applicant's employment;
   • further, or in the alternative, constituted Repudiation;
   • brought about the termination of the Applicant's employment on 1 October 2014.[616]
2. In her FAPOC, Ms Bashour states that in so doing:

...ANZ discriminated against the Applicant on the grounds of her disability or disabilities by:

• dismissing her or otherwise terminating her employment; and/or
• subjecting the applicant to a detriment;

in contravention of section 18 of the EO Act.[617]

1. ANZ denies their conduct was cumulatively inimical to continuation of the applicant's employment. Further, they deny that it constituted repudiation, and say further:

... that no conduct by ANZ constituted either a breach or a fundamental breach of any term of the Applicant's contract of employment, nor did it constitute a repudiation of the Applicant's contract of employment...[618]

1. ANZ also denies that their conduct brought about the termination of the Applicants employment, saying further that '...the Applicant resigned from her employment or (sic) 1 October 2014.'[619]
2. Further, ANZ denies that by their conduct they dismissed or otherwise terminated Ms Bashour's employment or subjected to her to detriment in contravention of section 18 of the EO Act, reiterating that she resigned from her employment.[620]

1. Repudiation is a contractual term. The question is whether there was indirect discrimination and a course of conduct that caused the termination of Ms Bashour's employment or subjected her to a detriment under section 18.
2. I have not found the claims of indirect discrimination on the basis of disability proven, or that the imposition of the requirement, condition or practice was conduct by ANZ that exerted pressure on Ms Bashour to resign. Further it was not conduct that exposed Ms Bashour to any other detriment. I have not found there is contravention of section 18 by ANZ.

1. Ms Bashour's sixth indirect discrimination claim is one of indirect pregnancy discrimination, in that ANZ imposed as a requirement of her employment that she work in a 'Hostile Work Environment for Pregnant Women'.

'Hostile Work Environment for Pregnant Women' Condition

1. At paragraph [150] of her FAPOC Ms Bashour claims:

...it was a requirement or condition of the Applicant's employment that employees work in a hostile environment that condoned the conduct set out in Part B above and that failed to adequately assist pregnant women (Hostile Work Environment for Pregnant Women Condition).[621]

1. At paragraph [151] Ms Bashour claims she '...was unable to, and/or less able to, comply with the above conditions and/or requirements because of her pregnancy.'[622]
2. At paragraph [152] of the FAPOC Ms Bashour states:

The above condition or requirement had, or was likely to have, the effect of disadvantaging pregnant women and was not reasonable.

Particulars

It is more difficult for pregnant women to survive in or comply with a hostile work environment as a result of their vulnerable health state.[623]

1. In response, ANZ denies the allegations at paragraph [150] and say further that:

150.1 ANZ at all relevant times had in place policies and

procedures which were inconsistent with the existence of a so called 'Hostile Work Environment for Pregnant Women'; and

Particulars

ANZ has had in place a Code of Conduct prohibiting unlawful discrimination, victimisation, bullying or harassment since at least 31 October 2008.

ANZ has had in place a flexible work arrangements policy since 2011, and flexible work practices existed prior to that date.

ANZ offers family friendly benefits to employees, including:

(a) paid parental leave equivalent to 12 weeks' pay for the primary caregiver irrespective of length of service;

(b) a childcare allowance being a $4,000 payment to help address the availability of affordable childcare for permanent employees returning to work after parental leave who do not have a partner at home to provide full time care for the child;

(c) unpaid parental leave irrespective of length of service for up to 12 months, after which employees may apply for an extension of unpaid parental leave for up to an additional 12 months; and

(d) nursing mothers' facilities.

ANZ was recognised as an Employer of Choice for Gender Equality by the Australian Government's Workplace Gender Equality Agency in 2018, 2017, 2016, 2015 and 2014. The Employer of Choice for Gender Equality citation commenced in 2014 and was formerly known as Employer of Choice of which ANZ was a recipient nine times between 2002 and 2013.

ANZ was a member organisation of Male Champions of Change, an initiative established by the Australian Sex Discrimination Commissioner in 2010, joining in 2011.

ANZ is the Principal Business Partner of Chief Executive Women and a signatory to the United Nations Women's Empowerment Principles.

150.2 The Respondents are otherwise are unable to plead to the

allegations in paragraph 150 because:

(a) the phrases 'hostile environment that condoned the conduct' and 'Hostile Work Environment for Pregnant Women Condition' are vague and incapable of being understood; and

(b) 'the conduct' which is alleged in paragraph 150 to have been 'condoned' (by unnamed persons) comprises all the allegations made in Part B of the Applicant's Claim (which in turn consists of all the allegations in the Applicant's Further Amended Points of Claim from paragraphs 2 to 128).[624]

1. ANZ denies the allegations at paragraph [151].[625]
2. In response to paragraph [152] ANZ states:

The Respondents deny the allegations in paragraph 152 and say further that the Respondents are otherwise unable to plead to the allegations in paragraph 152 by reason of the fact that

152.1 The Applicant has not identified the manner in which the alleged conditions or requirements were 'not reasonable' or were likely to have the effect of disadvantaging pregnant women; and

152.2 The allegation in the particulars to paragraph 152 to the effect that it is 'more difficult' for pregnant women 'to survive in' or 'comply with' a 'hostile work environment' is unintelligible and incapable of being understood.[626]

1. Ms Bashour submitted an employer engages in indirect discrimination on the ground of pregnancy if the employer imposes or proposes to impose a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons who are pregnant and the requirement, condition or practice is not reasonable.
2. Ms Bashour submitted it was a requirement or condition of her employment that employees work in a hostile environment that condoned conduct in Part B of her FAPOC and failed to adequately assist pregnant women.[627]
3. This condition is submitted to have '...had the effect, or likely effect, of disadvantaging pregnant women because, by its nature, it penalised women who were pregnant, failed to give necessary support to pregnant women and had a disproportionate effect on the ability of pregnant women to obtain the full benefit of their employment and attain their full employment potential.'[628]
4. Ms Bashour submits when she complained about various aspects of the condition, the standard response from ANZ was that it was 'consistent with ANZ's general approach.'[629]
5. In closing submissions Ms Bashour submits that whether any particular employment circumstances amount to a hostile work environment is a factual question to be determined on a case by case basis. Ms Bashour submitted that because the circumstances in Poniatowska and Stanley were not considered sufficiently systematically hostile does not detract from the potential for such environments to exist.[630]
6. Ms Bashour refers to paragraphs [66]-[121] of her FAPOC in which she '...sets out the details of the hostility she faced following her second pregnancy, which were eventually cumulatively inimical to the continuation of [her] employment.'[631]
7. Ms Bashour's submissions vary from relying on a hostile environment for pregnant women, to '...an environment of hostility towards women who were or had been pregnant.'[632]
8. In her submissions, Ms Bashour provides two sets of examples of treatment constituting this environment, which I consider below.
9. Firstly, she states that this included:

(a) Mark Shaw telling the Applicant: 'although we have touchy feely policies, flex work arrangements are frowned upon'...;

(b) being overlooked for promotion in favour of less qualified employees...;

(c) the reneging from an agreement regarding how many days the Applicant needed to be in the office...; and

(d) the subsequent hostility towards the Applicant when she would not acquiesce in the new arrangement in the manner expected...[633]

(a) being ambushed at a meeting and being blamed for the tardiness of her colleagues;

(b) having to cover deadlines missed by Mark Shaw in circumstances where he would not speak to her;

(c) a change in the attitude of work colleagues towards her after she became a mother;

(d) extra scrutiny applied to other female employees who had had children;

(e) the workplace environment being 'over scrutinising and aggressive' particularly towards women who had children.[634]

1. In closing submissions Ms Bashour also describes in or about mid-November 2010 when Mr Shaw told her taking the secondment to Storm would guarantee her a permanent promotion to Group 3 and she would not have to return to her 4.1 role, and that after she became pregnant this never happened.[635]
2. Ms Bashour has included being overlooked for promotion as an example of the hostile work environment condition.[636]
3. Ms Bashour referred to the Tribunal hearing '...evidence regarding other women at ANZ who have experienced hostility. These are detailed in Annexure 1.'[637] Annexure 1 comprises the applicant's lay witness evidence analysis.
4. In closing submissions in reply, Ms Bashour submits the EO Act provides that it is not necessary she be pregnant at the time the hostile work environment was imposed. Section 7(2)(a) states 'that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination.' Ms Bashour notes ANZ takes issue with this constituting a 'Hostile Work Environment for Pregnant Women' on the basis that Ms Bashour was not pregnant when she returned from maternity leave, and that this 'temporal problem' is inconsistent with the manner in which discrimination is defined in the EO Act. Ms Bashour relies on section 7 to submit that it is sufficient that she had been pregnant. It is not necessary that the Ms Bashour be pregnant at the time the hostile work environment was imposed on her by ANZ in order for ANZ's conduct to constitute a contravention.[638]
5. In closing submissions in reply, Ms Bashour clarified the condition stating ANZ '...did not impose the Hostile Work Environment on all parents but on women who had been or become pregnant.'[639]

1. ANZ denied imposing a hostile work environment condition, and submitted that this allegation is so vague and unclear it is incapable of being pleaded to. In the alternative, they submit the requirements or conditions were reasonable in all the circumstances.[640]
2. ANZ again disputed there is a line of jurisprudence confirming the existence of a 'hostile work environment' in the context of sexual harassment. Moreover, there is no line of cases establishing the concept of a hostile work environment in the context of pregnancy.[641]
3. In response to Ms Bashour's closing submissions where she includes examples of the hostile work environment, ANZ submits the conduct is not directed to the attribute of being pregnant. For example, these examples include reference to Ms Bashour being overlooked for promotion, when she was not pregnant. In response to Ms Bashour's closing submissions, that the conduct created a hostile work environment towards women who were or had been pregnant, ANZ submitted this was '...a belated attempt to expand the indirect pregnancy discrimination claim to include a de facto claim relying on the attribute of parental status.'[642] ANZ describes this as '...an effort to seek to render relevant events alleged to have occurred after Ms Bashour's pregnancy. This is impermissible and only serves to further cloud an aspect of the claim which was already unintelligible.'[643]

1. In oral opening submissions it was submitted that:

...it is evident given what Ms Bashour went through that this is a hostile work environment for pregnant women because the bank when she [ap]pealed to high levels came back to HR, various operatives and kept on saying, 'No, no, no, this is all reasonable conduct in accordance with the standard approach of ANZ in dealing with these matters. All standard, standard, standard.' And we will go to the evidence where that occurs, it is not just once, it is numerous times.[644]

1. The claim is that it was a requirement or condition of employment that employees work in a hostile environment that condoned the conduct set out in Part B Factual Background of the FAPOC that failed to adequately assist pregnant women.[645] Ms Bashour claims she was unable to comply with the condition because of her pregnancy and that it had the effect of disadvantaging pregnant women and was not reasonable.
2. Ms Bashour submits '[w]hether any particular employment circumstances amount to a hostile work environment is a factual question to be determined on a case-by-case basis.'[646] She points to the recent Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) that recognises the concept '...of a composite of events, behaviours, customs or routine occurrences which create work environments which are hostile towards persons with a protected attribute, and therefore discriminatory because of that attribute.'[647]
3. In terms of what 'hostile' means when used as an adjective, the Macquarie Dictionary defines 'hostile' as:

1. opposed in feeling, action, or character; unfriendly; antagonistic: hostile criticism.

2. of or characteristic of an enemy: hostile ground.[648]

1. The dictionary definition and common parlance suggest animosity or antagonism is required.
2. ANZ disputes the existence of the requirement or condition of a 'Hostile Work Environment for Pregnant Women'. ANZ submits the allegation is so vague and unclear it is incapable of being pleaded to.
3. In opening submissions the hostile work environment was described by Ms Bashour as one which '...penalised women who were pregnant, failed to give necessary support to pregnant women and had a disproportionate effect on the ability of pregnant women to obtain the full benefit of their employment and attain their full employment potential.'[649] The lack of specificity in that description was addressed in the examples relied on for the condition detailed in Ms Bashour's closing submissions.[650] I turn to consider the evidence relied on by Ms Bashour in support of the claimed condition.
4. Ms Bashour refers to examples from Part B Factual Background that relate to the indirect pregnancy discrimination. The submissions state:

Part B sets out the contrast between the career expectations of the Applicant and her treatment by the First Respondent before her and after first pregnancy. This included:

(a) Mark Shaw telling the Applicant: 'although we have touchy feely policies, flex work arrangements are frowned upon'...;

(b) being overlooked for promotion in favour of less qualified employees...;

(c) the reneging from an agreement regarding how many days the Applicant needed to be in the office...; and

(d) the subsequent hostility towards the Applicant when she would not acquiesce in the new arrangement in the manner expected...'[651]

1. ANZ's closing submissions refer to the fact that none of the above examples are directed to Ms Bashour's attribute of pregnancy.
2. Ms Bashour resolves this temporal problem through the definition of discrimination on the basis of an attribute including, under section 7(2)(a) of the EO Act, 'that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination.'
3. This section is very broad and has the potential to cover what could amount to absurd scenarios. In the context of this case, it would appear to cover the period from the commencement of Ms Bashour's first pregnancy onwards, and therefore does apply to periods when Ms Bashour was not pregnant after her first pregnancy, as pregnancy is an attribute 'she has had at any time.'
4. I consider each of the above examples.

(a) Mark Shaw telling the Applicant: 'although we have touchy feely policies, flex work arrangements are frowned upon'

1. Ms Bashour states this is part of a conversation she had with Mr Shaw around 12 August 2013 when he became Head of Compliance.[652] In his statement Mr Shaw specifically denies saying words to this effect to Ms Bashour.[653] At the hearing, he was not cross-examined about this statement. Given it is denied and Mr Shaw was not cross-examined about it, this goes to the weight I attribute to Ms Bashour's claim.
2. I also note this alleged statement by Mr Shaw is somewhat inconsistent with the fact that in 2009 Ms Bashour commenced working from home one day a week immediately upon starting with ANZ. Mr Shaw refers to one of Jennifer Evans' direct reports, at Group 2 level, working from home on a flexible arrangement two days a week. There was a peppering of ANZ employees referred to in the evidence who were on flexible work arrangements.
3. The evidence is not of sufficient weight for me to be satisfied Mr Shaw made that statement. I therefore do not find it is established on the facts to form part of the claim there was a Hostile Work Environment for Pregnant Women Condition.

(b) Being overlooked for promotion in favour of less qualified employees

1. In support of this example, Ms Bashour states in her FAPOC:

The Applicant was more qualified than Ms Edelman for the Promotion.

Particulars

The Applicant was a more qualified candidate than Ms Edelman because the Applicant had consistently received better performance reviews than Ms Edelman; the Applicant was trained and experienced for that position; Ms Edelman had never managed a team and the Applicant had; Ms Edelman did not have any experience as a Group 3 Senior Manager and the Applicant did; Ms Edelman did not fulfil all the selection criteria and the Applicant did. Moreover, Ms Edelman was not eligible to apply for the position as she lacked compliance experience, which was a mandatory criterion of the role.

Ms Edelman was given the Promotion in preference to the Applicant because, whether solely or partly, the Applicant:

(a) had a young child; and/or

(b) had recently taken parental leave; and/or

(c) required flexibility in her work location and times because of her family responsibilities; and/or

(d) was working from home 2 days per week; and/or

(e) was likely to take parental leave again in the future.[654]

On 4 April 2014, the Applicant was notified that she was unsuccessful in her application for an internal Compliance Manager role, Wealth; a Group 4.1 position. This is despite her suitable skill set, experience and good relationship with senior managers in Wealth.[655]

1. Ms Bashour claims that two events firstly, not being successful in her application for promotion on 25 September 2013 and, secondly, being unsuccessful in her application for a 4.1 position on 4 April 2014, are evidence of the employment condition of a Hostile Work Environment for Pregnant Women.
2. ANZ notes the 25 September 2013 lost promotion has not been pleaded as a contravention of the EO Act.[656] Further, ANZ has submitted in September 2013 Ms Bashour was not pregnant.[657]
3. On 4 April 2014, the only person at ANZ who knew Ms Bashour was pregnant was Ms Turner. Ms Edelman became aware of Ms Bashour's pregnancy on 14 April 2014. Nevertheless, I have already noted my view about the effect of section 7(2)(a) and it appears its breadth includes Ms Bashour's circumstances.
4. There is no claim before me that these hiring decisions amounted to direct discrimination: these two examples are put as part of a series of events to support the Hostile Work Environment for Pregnant Women claim. It is pleaded at paragraphs [19] and [20] of the FAPOC. With respect to the 25 September 2013 decision, the way the claim is put is Ms Bashour was overlooked for promotion and this experience formed part of the Hostile Working Environment for Pregnant Women Condition. In that context I do not embark on a merits review of the promotion decision, but instead consider what that decision represented in the context of the claimed hostile work environment condition.
5. Ms Bashour's submissions detail the ANZ recruitment policy.[658] With respect to the 25 September 2013 decision, Mr Shaw's evidence was he was aware of the ANZ recruitment policy and ultimately stated it is a question of his judgment and how he saw the role and who would be the best fit. He emphasised that the policy says, 'Appoint the best candidate.'[659]
6. Following the first-round interviews, Ms Bashour and Ms Edelman were evenly scored.[660] This suggests Ms Edelman was not as unqualified for the position as suggested by Ms Bashour in her statement.[661]
7. In cross-examination Mr Shaw stated '... at the end of the day the - you know, for you as the line manager, need to make your own assessments of who you think is going to do the best in that role.'[662] Further, he stated:

...I was of the view that that role really needed to take a much greater lead around regulatory engagement and how we - I was of the view that we would be starting to see a lot more regulatory kind of interaction and engagement as sort of regulators like ASIC were changing priorities. And I wanted someone who had that experience in really being able to manage relationships, influence, and work around sort of regulatory change or regulatory management. And Liana had been doing that for the bank for a number of years, working in Government Affairs.[663]

1. Ms Bashour's closing submissions concede that although clause 9 of the ANZ recruitment policy assigns a priority to certain candidates, '...it does not ultimately preclude hiring decisions from being based on "individual merit".'[664]
2. There are many reasons why one candidate may be preferred over the other in employment situations. Mr Shaw's evidence was that he had genuine business consideration reasons as to why Ms Edelman was appointed in preference of Ms Bashour. He described his idea of what he wanted for the role and that Ms Edelman was the best fit for that purpose. I accept his evidence. He did not embellish his answers, he was responsive and gave a clear explanation as to why Ms Edelman was regarded as the better candidate. He made appropriate concessions when he did not know or could not recall events.
3. With respect to the hostile work environment claim, there is no evidence of this recruitment process reflecting any animosity towards Ms Bashour. Mr Pratt's report from the first-round interviews summarises the strengths and areas for consideration and rating of both Ms Bashour and Ms Edelman. It is reasonable and the language is entirely appropriate. I note Ms Bashour has expressed other concerns about the interview process (such as that Ms Edelman was interviewed one on one, whilst she was interviewed by both Mr Shaw and Ms Rixon at the same time), as well as being shown an interview chart with Mr McCutheon's name in a position above Ms Bashour's during the interview, although he was ultimately unsuccessful in getting a second-round interview.[665]
4. As disappointing as the result may have been, I am not of the view missing out on a promotion transforms it into an event that supports the existence of a Hostile Work Environment for Pregnant Women Condition. There may have been differences in the interview process that may, taken at its very highest, have had an unfair or unequal element, but that does not elevate the workplace into being a 'hostile work environment.'
5. Given that finding, I do not find that the 2013 'lost promotion' could form part of the evidence in support of a condition, namely a Hostile Work Environment for Pregnant Women Condition.
6. There was no evidence advanced about the April 2014, Group 4.1 position for which Ms Bashour was unsuccessful. Therefore, likewise, I cannot find that this event supports such a condition being imposed.

(c) the reneging from an agreement regarding how many days the Applicant needed to be in the office

1. This is particularised at paragraph [33] of Ms Bashour's FAPOC where she states that between 11 November 2013 to late November 2013 ANZ, through Mr Shaw, continued to seek to vary the flexible work agreement.
2. There is reference to the two emails Mr Shaw sent Ms Bashour on 18 November and 22 November 2013 stating words to the effect that he did not agree to Ms Bashour working from home four days a week.
3. Mr Shaw and ANZ did not accept the premise of this example, particularly that there was a 'reneging' from an agreement.
4. In the direct discrimination claim I have made factual findings with respect to this dispute between the parties. I did not find that on 26 September 2013 Mr Shaw agreed to Ms Bashour's claimed 'flexible work agreement' to work from home four days a week or that there was a variation to her contract of employment.
5. On this basis, his efforts to explain his position in the meeting on 11 November 2013, and subsequent emails dated 18 November and 22 November 2013, do not constitute events reflecting a hostile work environment. There was certainly a workplace dispute on foot, so in that sense the context was adversarial, but there is no tone, language or any other indication from the emails which supports a finding there was a hostile environment with animosity directed towards Ms Bashour. Mr Shaw's emails were a valid and reasonable method to attempt to resolve the dispute.

(d) the subsequent hostility towards the Applicant when she would not acquiesce in the new arrangement in the manner expected

1. Ms Bashour's description of the hostility experienced due to her 'non-acquiescence' dates from 11 November 2013 when Mr Shaw 'continued to seek to vary the Flexible Work Agreement', and by way of summary, includes the following events from paragraphs [66] - [121] of her FAPOC:
   • The referral of the four day working from home dispute to Mr Zeman;
   • Ms Bashour's objection to the HR decision;
   • Ms Bashour's Fair Work Commission claim and then her Federal Court proceeding;
   • Ms Edelman seeking a fitness for work certificate, and informing Ms Bashour that ANZ 'would undertake a 'flexible work arrangement assessment';
   • Ms Bashour's complaint to Mr Chronican and Ms Babani;
   • Ms Bashour's name being removed from the Forward Agenda;
   • Ms Bashour's three complaints to Ms Turner;
   • Ms Turner's response;
   • Ms Bashour seeking a review of and written reasons for Ms Turner's decision; and
   • The letters from Dr Joubert.
2. These events are described as demonstrating 'hostility' to Ms Bashour. This example is unhelpfully very broad, and I do my best to consider the summarised events included in its sweep.
3. I am not of the view that by referring her complaints to a complaints process Ms Bashour can include those complaints as part of the 'hostile environment.' She was dissatisfied with the results and continued to refer her complaints, which were duly considered by ANZ. Also, Ms Bashour taking action in the Fair Work Commission and Federal Court does not constitute the basis of a hostile environment as these are her actions and applications.
4. I have made a finding in my decision regarding direct discrimination that Ms Edelman's requests for the fitness for work certificate did not constitute unfavourable treatment. I do not consider these requests, which I find to be reasonable in all the circumstances, can support a finding there was a condition of a Hostile Work Environment for Pregnant Women.
5. The letters from Dr Joubert cannot be claimed to form part of the hostile work environment created by ANZ. Dr Joubert is just reporting in these letters what Ms Bashour had told him, and he had no direct interactions with or observations of the ANZ work environment.
6. I consider in greater depth the examples given regarding the flexible work arrangement assessment and removal of Ms Bashour's name from the Forward Agenda.
7. In her statement Ms Bashour detailed her great concern about being asked to complete a flexible work arrangement assessment.
8. On 20 January 2014, Ms Edelman asked Ms Bashour to fill in a flexible work arrangement request form for consideration by ANZ. Ms Edelman stated:

I made this request in order to initiate the formal process for the registration of her flexible work arrangements under the ANZ Flexible Work Arrangements Policy given the dispute about the terms of her flexible work arrangement were ongoing. My email said:

...I understand there has been a dispute over what was agreed between you and Mark in September and that ANZ's position is that there was no agreement to you working from home for 4 days each week.

From your email this morning, it appears that you would still like to pursue that arrangement, and in order to progress that I suggest that we now go through the formal process required under Policy for Flexible Work Arrangements. I am keen to support you working flexibly to the extent possible, subject to meeting the needs of the business.

Step 1 of the formal process is for you to fill in the Flexible Work Arrangement request form available on MAX...This will then be considered by myself and Mark in consultation with an HR representative.

Until your application is assessed, please note the arrangement is not approved and you will need to work in accordance with your current arrangement (2 days per week from home). I am also happy to reinstate Mark's offer of 22 November 2013, whereby you work from home on a maximum of 5 days per fortnight and leave at 4pm on the days you come to the office (with a minimum of 2 days spent in the office each week).[666]

1. On 22 January 2014, Ms Edelman emailed Ms Bashour to follow up her request to fill out the form. Ms Bashour did not respond. Ms Edelman followed up again on 4 March 2014 when Ms Bashour returned from sick leave. Describing the contents of this email, Ms Edelman stated:

I said that ANZ would now be undertaking a flexible work assessment to identify what arrangement could be accommodated, but in the meantime she could continue to work from home four days per week. The permission to work from home was not an acknowledgement that this had been previously agreed, or that it was feasible for ANZ, but rather was done to permit the status quo to continue for a brief period of time while her request was assessed.[667]

1. On 7 March 2014, Ms Bashour responded to Ms Edelman's emails. In her response regarding the flexible work arrangement assessment, Ms Bashour stated:

Part of my contract of employment provides for me to work from home 4 days per week. This agreement was entered into with Mark on the basis that I communicate information about what my office day would be to him by the start of each week. I do not wish to vary this contractual arrangement and I do not wish to enter an agreement under the ANZ flexible work arrangements policy.

It is inappropriate for ANZ to conduct an assessment of whether it is able to accommodate me working from home 4 days per week when I have not made a request to enter a flexible work arrangement outside of my contractual entitlement and will not be providing any information upon which ANZ could sensibly consider such a request. It would inevitably be doomed to fail. The policy specifies that 'any regular and ongoing flexible work arrangement requires agreement between the employee and...' Given that I do not agree to enter a flexible work arrangement outside of my contractual entitlement it would be acting in breach of that policy to put in place an arrangement in the current circumstances:

Again, treating me in, a manner that is outside the ANZ policies and is different from the way in which other employees are dealt with is discriminatory. It may involve an additional breach s340 of the Fair Work Act.

Further, it appears that you are trying to pressure me to enter into a flexible work arrangement under the ANZ policy that I have not applied for. Under s343 of the Fair Work Act you must not take or threaten to take any action against me with intent to coerce me to exercise (or not exercise) a workplace right. If you continue with any unwanted flexible workplace assessment in order to get me to accept a flexible work arrangement, or to get me to accept a variation to my contractual entitlements, you will be in breach of this section.

Lastly, I would kindly ask that you refrain from discussing these matters further as they are serious and subject to legal proceedings.[668]

1. In my view of the evidence, Ms Edelman's request for Ms Bashour to complete a 'flexible work arrangement request' was a genuine attempt by her to reach a mutually beneficial resolution to the impasse regarding the dispute about her working from home four days a week.
2. Ms Edelman's acts were an attempt to regularise Ms Bashour's working from home arrangements with the relevant ANZ Flexible Work Arrangements Policy. In her email dated 22 January 2014 she appropriately acknowledged the dispute regarding the four-day work from home arrangement and offered to maintain the status quo whilst the assessment was made. There is no overbearing tone, inappropriate language or excessive communication on her part. She is attempting to manage a challenging workplace dispute as was appropriate in her position as Ms Bashour's direct manager. Her actions in taking this course, which Ms Bashour declined to participate in, were, in all the circumstances, reasonable. I do not accept that requesting Ms Bashour engage in this process was an act that constitutes part of a hostile work environment.
3. Ms Bashour also describes removal of her name from the Forward Agenda as an example of an event part of a hostile work environment.
4. Ms Edelman described Forward Agenda as an email '...about creating awareness across the business as to regulatory matters that are going on, and providing a compliance contact should those people wish to discuss those matters further.'[669]
5. On 12 March 2014, Ms Bashour sent an email to Ingrid Sikk asking why she was not '...listed as a contact person for any of the items?'.[670]
6. Ms Sikk responded, 'Liana asked me to take your name off FA as a contact and put Hannah in as a contact- she didn't think you would be back.'[671]
7. Ms Edelman denied saying this to Ms Sikk in her statement.[672] When asked in cross-examination Ms Edelman denied she said this to Ms Sikk, saying it was not correct that she said to Ms Sikk she thought Ms Bashour would not be back.[673]
8. Ms Bashour's name was returned to the 7 April 2014 edition of the Forward Agenda.
9. Ms Bashour had been absent from work, except for the half day on 20 January 2014 in the office and two days working from home on 21 and 22 January, for two months. Another employee, Hannah Johnston, who was present in the workplace, was nominated as a contact for ADC. It appears Ms Bashour was not listed as a contact person for two issues of the Forward Agenda (Issue 79 and Issue 80).[674] When Ms Bashour did return to work her name was reinstated as a contact person on Forward Agenda.
10. Although perhaps ill advised, I am not of the view the act of removing her name from Forward Agenda for one month in circumstances where Ms Bashour had been on extended sick leave is sufficient to constitute an example of a hostile work environment. There is a logical explanation for the removal of her name, namely that Ms Bashour had been on extended sick leave.
11. Although Ms Bashour made general complaints about Ms Edelman's management style Ms Edelman's written communication with Ms Bashour appears to have been balanced and reasonable.
12. In her submissions about the hostile work environment condition, Ms Bashour also refers to the 'atmosphere' at ANZ having changed when she returned from maternity leave. The examples at paragraph [224] of her closing submissions are separate to those particularised in Part B of the FAPOC.
13. She referred to the following incidents:

(a) being ambushed at a meeting and being blamed for the tardiness of her colleagues

1. This meeting was on 13 June 2013 when Ms Bashour had returned from maternity leave. She attended a meeting, representing her then line manager Mr Harman, and describes being 'screamed at' by Ms Larson who was Global Chief of Wealth.[675] Ms Bashour describes being embarrassed and humiliated. She states that after the meeting Mr Vasta had to apologise to her, and the problem was reported to Ms Evans, '...because it was such a high-risk item that we were being blamed for and I was yelled at.'[676] Mr Harman expressed in emails to Mr Vasta and Ms McGrath, of the Australia Legal Group, that he felt bad and was disappointed that Ms Bashour was ambushed and left to defend the position taken by ADC.[677]
2. Whilst the experience of the meeting itself was difficult and unfair to Ms Bashour, immediately following the meeting the incident was escalated, and she received an apology from Mr Vasta. Subsequently it appears she received appropriate support from her team, namely her line manager, Mr Harman. The described screaming, for whatever the reason, was unacceptable behaviour which appears to have been duly acknowledged.

(b) having to cover deadlines missed by Mark Shaw in circumstances where he would not speak to her

1. Ms Bashour's evidence was this was about following up on a deadline Mr Shaw had missed which required his final signoff. Ms Bashour stated, 'I am trying to smooth things over bearing in mind Mr Shaw is not speaking to me, I haven't spoken to him for months at that stage and there is a very, very hostile work relationship.'[678] She explained he was not speaking to her because '[t]here was a dispute about my flexible work arrangement and it was escalating and now I took my complaint, pursuant to the ANZ process, externally. I had gone to the [Federal] court of Australia to try to maintain - to keep my job...'.[679]
2. In cross-examination it was put to Mr Shaw he ceased talking to Ms Bashour. He stated he did not remember ceasing to talk to her, but that she was not in the office often and as she was reporting to Liana there was less need for interaction.[680] In re-examination Mr Shaw was asked about his communication with Ms Bashour after she lodged her Fair Work Commission claim on 15 January 2014, he stated he was unsure and could not recall whether he was in the office when she attended ANZ, and that after she lodged the claim, '...I might be possibly more cautious in my interactions with her at that point, possibly.'[681] He was not able to say if he was in the office when Ms Bashour attended on 20 January, four days in March and two days in April. The days she was in the office he recalled she had advice from her neurologist not to sit with her team, and he did not recall seeing her face to face.[682]
3. Mr Shaw was named as the contact person for ANZ in Ms Bashour's General Protections Application in the Fair Work Commission. Given this, and that Ms Bashour was sitting away from the team, and her limited attendance at ANZ, it seems reasonable Mr Shaw, not being her line manager, did not have contact with her. He did not remember that he ceased speaking to her. I have no doubt relations had cooled given the dispute over the four-day work from home arrangement. But there was also an element of self-imposed removal: the limited opportunity for face-to-face contact and Ms Bashour's medical advice that she sit away from her team sent a certain message to her team and managers about direct contact.
4. Although the evidence demonstrates there was a level of discomfort amongst work colleagues, I am not of the view this constitutes an example of hostility or animosity such to support finding a condition of Ms Bashour's employment that employees work in a hostile environment that failed to adequately assist pregnant women. The condition is pleaded as a condition of employment which by implication means imposed by ANZ. The cooling of relations between Mr Shaw and Ms Bashour was in the context of the four-day work from home dispute but also Ms Bashour's physical absence from the office as a result of leave, her maintenance of the four-day work from home position, and the advice from her neurologist to sit away from her team.

(c) a change in the attitude of work colleagues towards her after she became a mother

1. This is a reference by Ms Bashour to her returning from maternity leave and noting since her return she had not had coffee or lunch or any celebration with Mr Harman. She stated despite still being friends '...there was a distinct change after I became a mother...'.[683]
2. In cross-examination Mr Harman referred to himself and Ms Bashour as having been friends.[684] In absence of any further evidence, I am not able to read anything further into that example. Accepting Ms Bashour's evidence on this, not having coffee, lunch, or a celebration is insufficient evidence to base a finding of a hostile working environment.

(d) extra scrutiny applied to other female employees who had children

1. This evidence relates to text exchanges between Ms Bashour and Ms Ingrid Sikk. This evidence arose in Ms Bashour's additional oral evidence in chief.
2. Ms Bashour described Ms Sikk as another mother in the ADC team who was also a lawyer. Ms Sikk worked three days a week and often worked one day from home. I refer to the contents of Ms Sikk's texts as Ms Bashour's reply texts were neutral or non-responsive. Ms Sikk's texts were read into evidence and commented on by Ms Bashour.
3. One text from Ms Sikk dated 12 February 2014 described Liana Edelman as follows: 'Liana was hysterical here today- she has been pulling late nights and looked exhausted- and was swearing and carrying on like she'd completely lost the plot. So much for thriving on stress...'.[685]
4. On 11 March 2014, Ms Sikk refers to a Norton Rose all day intensive but that she was '...anxious about going to the toilet, let alone a long cpd catch up!!! I'm going to let it go since I am bowing out soon.'[686]
5. Ms Bashour explained in her evidence this is:

...in reference because we couldn't leave our desk. We were being micromanaged and over scrutinised...Ms Sikk was contriving a reason to leave the ADC team. She said she is going to look up courses and then classify it as study leave so she could leave because we were the only mothers in the team and we were getting bullied. And at that point I had a hot desk so Ingrid was receiving a lot of the brunt of it and she was struggling.[687]

1. In another text exchange dated 18 March 2014 Ms Sikk wrote, 'Forgot to ask you when day do you have to come in for yr face to face meeting with Liana?'[688] In evidence Ms Bashour explained that Ms Edelman was requiring face to face meetings. Ms Bashour stated, '[i]t was a new implementation which was basically to torment me and make me breach my medical adjustment and recommendations from my doctor.'[689]
2. In another text dated 26 March 2014, Ms Sikk stated she had emailed Liana substituting working from home days as agreed verbally, and '...you get stony silence.'[690]
3. On 4 April 2014, Ms Sikk sent a long text about Ms Edelman getting 'hot under the collar' about her applying for annual leave on either side of her work from home day, Wednesday, which meant she would not be in the office for a two-week period.[691] Commenting on this text, Ms Bashour stated, '[t]his was not an employment environment that supported working mothers.'[692]
4. I note Ms Sikk was not called as a witness at the hearing. Instead, Ms Bashour interpreted her text messages.
5. Ms Edelman has referred in her statement to seeking clarification about whether Mr Bashour was able to have face-to-face meetings with her in response to Ms Bashour saying she was unwilling to go against her doctor's advice. In her email dated 12 March 2013 Ms Edelman states:

The doctor's advice that you have provided regarding your seating arrangements when at the ANZ centre does not include any advice or recommendations regarding your ability to communicate with me or others in the team. Given the health and safety concerns you have now raised, ANZ requires more information about your medical condition, prognosis and any adjustments or accommodations you require as a result of your condition.[693]

1. The letter subsequently received dated 27 March 2014 from Dr Joubert refers to that 'No other restrictions need to be in place. Electronic and telephonic communications are in order.'[694] I note Ms Sikk's text referencing the face-to-face meeting with Ms Edelman pre-dated Dr Joubert's letter.
2. In my view, the text messages are partly workplace banter and partly two colleagues, both mothers, venting about a mutual manager and letting off steam. They reflect the day-to-day niggles, challenges and compromises involved in working life and juggling family responsibilities.
3. Describing Ms Edelman seeking a face-to-face meeting 'to torment' her is an unusual response. Ms Edelman's evidence was she viewed face to face meetings as part of her role as a manager. I consider a manager can expect a direct report to have face to face meetings with them.
4. Objectively, based on the following facts, namely that the ADC team was a workplace where, because of parental responsibilities, one lawyer was working three days a week, with one of those days from home, and the other lawyer had been offered a flexible work arrangement of five days from home a fortnight with a minimum of two days in the office any week, it is difficult to conceive how it can be described as a 'Hostile Work Environment for Pregnant Women.'
5. I am not of the view the texts and their interpretations are evidence in support of an employment condition of a Hostile Work Environment for Pregnant Women.

(e) the workplace environment being 'over scrutinising and aggressive' particularly towards women who had children.

1. In cross-examination Ms Bashour was asked about hot-desking which she described as a common practice at ANZ. She stated in November 2013 Mr Shaw had said 'I don't care where you sit, go hot-desk.'[695] When asked why in such circumstances she needed her neurologist to state she needed to sit away from the team she stated:

...I was working in a place that was completely over scrutinising, aggressive. I would be too scared to just pick up. I'm the person that we were told to lock our handbags away and not have phones on our desks. I couldn't just go and do my usual practices...[696]

1. This detail about handbags and phones does not appear in any of Ms Bashour's four statements or oral evidence in chief, and it arose in cross-examination for the first time. None of the ANZ witnesses were cross-examined about it, most particularly Ms Edelman, whom it appears is imputed to have imposed the requirement that Ms Bashour lock her handbag away and not have her phone on her desk.
2. If accepted, it appears to be a most unreasonable requirement if it was targeted toward women with children as they need access to their phone for obvious reasons. If this was an example of Ms Edelman's micro-managing I am surprised it has not been referred to in Ms Bashour's statements or raised in correspondence, or included as an example on 11 November 2013 when Ms Bashour complained to Mr Shaw about Ms Edelman's management style, or mentioned in any of Ms Bashour's complaints to senior management. In the absence of any other evidence, I do not give it any weight.

1. I am of the view the above examples of a composite of events, behaviours, customs or routine occurrences do not support a finding of a requirement, condition or practice imposed by ANZ of a hostile work environment that condoned the conduct set out in Part B Factual Background of the FAPOC and failed to adequately assist pregnant women.
2. I accept this is a nuanced claim, which is breaking fresh ground in the context of formulating the requirement, condition or practice claimed to be imposed by ANZ. It is the opposite of the clear condition in Australian Iron & Steel where the requirement imposed by Australian Iron & Steel, when retrenching ironworkers, was that retrenchments would, from a particular date, be 'last on first off.' The condition alleged here is far more diffuse and, whilst I accept a hostile work environment condition such as the one claimed could be claimed, it needs evidence to support it. That is not to say the acts need to be overt, they could be subtle and insidious. The condition is a question on the facts, as submitted by Ms Bashour, to be determined on a case-by-case basis.
3. The examples considered above are of a functioning workplace and managers dealing appropriately with a workplace dispute. The examples relied on by Ms Bashour, whilst upsetting to her personally, are far removed from the examples of behaviour complained of in cases such as Hill or Poniatowska. They are not of such a nature that, on an objective view, they transform office interactions, disappointments and the context of a workplace dispute into ANZ imposing a Hostile Work Environment for Pregnant Women Condition.
4. Further, all, bar Ms Sikk's texts, are examples particular to Ms Bashour and her experiences. It is difficult to see how this condition, setting aside its lack of specificity, could be said to be of general application to all pregnant employees.
5. On the evidence, Ms Bashour has not established the requirement, condition or practice under section 9(1).

Section 18 Area of prohibited discrimination

1. At paragraph [152] of her FAPOC, Ms Bashour claims that the Hostile Work Environment for Pregnant Women Condition '...had, or was likely to have, the effect of disadvantaging pregnant women and was not reasonable.' The Particulars state that '[i]t is more difficult for pregnant women to survive in or comply with a hostile work environment as a result of their vulnerable health state.'
2. Ms Bashour claims:

The Hostile Work Environment for Pregnant Women Condition:

(a) was part of a course of conduct engaged in by ANZ which was cumulatively inimical to the continuation of the Applicant's employment;

(b) further, or in the alternative, constituted Repudiation;

(c) brought about the termination of the Applicant's employment on 1 October 2014.[697]

In the premises, ANZ discriminated against the Applicant on the grounds of her pregnancy by:

(a) Dismissing her or otherwise terminating her employment; and/or

(b) subjecting the Applicant to a detriment;

in contravention of section 18 of the EO Act.[698]

1. In response to paragraph [152] ANZ state they deny the allegations articulated therein and say further that:

...the Respondents are otherwise unable to plead to the allegations in paragraph 152 by reason of the fact that:

The Applicant has not identified the manner in which the alleged conditions or requirements were 'not reasonable' or were likely to have the effect of disadvantaging pregnant women; and

The allegation in the particulars to paragraph 152 to the effect that it is 'more difficult' for pregnant women to 'survive in' or 'comply with' a 'hostile work environment' is unintelligible and incapable of being understood.[699]

1. Repudiation is a contractual term. The question is whether ANZ imposed a condition, a Hostile Work Environment for Pregnant Women, which was part of a course of conduct that disadvantaged persons with Ms Bashour's attribute and caused the termination of her employment or subjected her to a detriment. I have not found there was a condition imposed that had the effect of disadvantaging pregnant women. I have not found there was conduct by ANZ which put pressure on Ms Bashour to resign. I have not found there was a course of conduct that either brought the contract to an end or required Ms Bashour to resign or subjected her to a detriment.
2. I have not found indirect discrimination on the basis of pregnancy proven, therefore there is no contravention of section 18 by the ANZ.

1. Ms Bashour pleads at paragraph [165] of her FAPOC:

Further or in the alternative, Mr Chronican, Ms Babani and/or Ms Evans directly and/or indirectly authorised the discrimination in relation to the Hostile Work Environment for Pregnant Women Condition and/or Hostile Work Environment for Persons with Disabilities Condition by failing to intervene to prevent, stop or remedy same in circumstances where the Applicant made complaints to Mr Chronican, Ms Babani and/or Ms Evans regarding the matters underlying the hostile work environment from 6 March[700] 2014.

The Respondents deny paragraph 165 and say further that:

In so far as paragraph 165 alleges the existence of a Hostile Work Environment for Pregnant Women and a Hostile Work Environment for Persons with Disabilities, the allegations in paragraph 165 are incapable of being understood and incapable of being pleaded to, and the Respondents refer to and repeat paragraphs 141.5 150.2 and 152 above; and

In so far as paragraph 165 alleges that the Second, Third and Fourth Respondents directly or indirectly authorised discrimination by reason of a 'failure to intervene to prevent, stop or remedy' the conduct of others, the allegations are incapable of constituting 'a request, instruction, inducement, encouragement, authorisation or assistance to another person' to contravene a provision of the EOA within the meaning of section 105 of the EOA and the Respondents refer to and repeat paragraphs 3, 161 and 163 above.[701]

A person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 4 or 6 or this Part.

1. The primary complaint of unlawful contravention under Part 4 or Part 7 is the first step in establishing the liability of third parties under the authorising or assisting discrimination provision in section 105 of the EO Act.
2. Section 9 requires identification of the requirement, condition or practice. I have not found that Ms Bashour has established there was a requirement, condition or practice imposed by ANZ, namely the Hostile Work Environment for People with Disabilities or the Hostile Work Environment for Pregnant Women.
3. As I have not found ANZ to have contravened section 9, I have not found ANZ has contravened section 18 in Part 4 by dismissing or otherwise terminating Ms Bashour's employment or by subjecting her to a detriment. Therefore, the prohibition in section 105 is not engaged or triggered against Mr Chronican, Ms Babani and/or Ms Evans.

1. This section considers Ms Bashour's victimisation claim. She claims 14 alleged incidents of victimisation. Some of these repeat factual scenarios previously considered under her different claims of discrimination. She claims she has been subjected or threatened to be subjected with a detriment because of her complaints to senior management and legal proceedings she has taken in the Fair Work Commissions and the Federal Court under section 103(1)(a)-(h).

Prohibition of victimisation

A person must not victimise another person.

What is victimisation?

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

(a) has brought a dispute to the Commission for dispute resolution; or

(b) has made a complaint against any person under the old Act; or

(c) has brought any other proceedings under this Act or the old Act against any person; or

(d) has given evidence or information, or produced a document, in connection with -

(i) any proceedings under this Act or the old Act; or

(ii) any investigation conducted by the Commission; or

(e) has attended a compulsory conference or mediation at the Tribunal in any proceedings under this Act or the old Act; or

(f) has otherwise done anything in accordance with this Act or the old Act in relation to any person; or

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith; or

(h) has refused to do anything that -

(i) would contravene a provision of Part 4 or 6 or this Part; or

(ii) would have contravened a provision of Part 3, 5 or 6 of the old Act -

or because the person believes that the other person or the associate has done or intends to do any of those things.

(2) It is sufficient for subsection (1)(g) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened.

(3) In determining whether a person victimises another person it is irrelevant -

(a) whether or not a factor in subsection (1) is the only or dominant reason for the treatment or threatened treatment provided that it is a substantial reason;

(b) whether the person acts alone or in association with any other person.

(4) In this section, old Act means the Equal Opportunity Act 1995, as in force before its repeal.

1. The first component of a victimisation claim is that the person must be 'subjected to or threatened to be subjected to a detriment.' The second is establishing the detriment. Thirdly, there must be a causal nexus between any detriment and the conduct listed in section 104(1)(a)-(h).
2. The failure to prove a discrimination complaint does not remove liability for a victimisation complaint.[702]

1. Detriment is defined in section 4 of the EO Act to include humiliation and denigration. Examples in employment include demotion, dismissal, transfer or loss of benefit.[703] Detriment is determined objectively; a complainant's subjective belief that they have been subjected to a detriment is not sufficient:

There is some authority that whether something constitutes a detriment is an objective question, such that the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment...[704]

1. In Burns v Sunol[705] the NSW Civil and Administrative Tribunal stated, '[i]n summary, in our view a detriment is any objective disadvantage in any circumstance, but a person will not have suffered a detriment if a reasonable person would not regard the matter as a detriment because it is trivial.'[706]
2. There must be evidence of detriment. In Burns v Sunol (No 2)[707] the Tribunal held that '[w]ithout some evidence that [the complainant] was adversely affected by the publication or subjected to a detriment, the complaint must fail.'[708]

1. There must be a causal link between the protected conduct (under section 104(1)(a)-(h)) and the prohibited conduct constituting the detriment. This is signified by the word 'because' in section 104(1). In Purvis the High Court confirmed the test for causation in anti-discrimination legislation is to focus on the 'true basis', the 'genuine basis' or 'the real reason'.[709] The majority, Gummow, Hayne and Heydon JJ, adopted the 'true basis test' and stated, '[m]otive, 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".'[710]
2. This issue was also considered in Sivananthan v Commissioner of Police, New South Wales Police Service[711] as to whether motive was a requirement of the equivalent NSW victimisation legislation and the NSW Tribunal stated:

In order to prove that the complainant was subjected to a detriment on the ground of his complaints of race discrimination 'a relationship of cause and effect' (this is the language used by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd [1993] FCA 535; (1993) 118 ALR 80 at 103) must be established between those complaints of race discrimination and the actions of the respondent which result in a detriment to the complainant. Thus, it is the reasons or grounds for the respondent's actions, as opposed to his intention or motive, which are crucial. It is axiomatic that we must be satisfied that the respondent, or his employees, knew of the complainant's complaints of race discrimination if we are to find that the respondent subjected the complainant to any detriment on the ground that he had complained of race discrimination.[712]

1. Under section 104(3)(a) the factors listed in section 104(1) must be the substantial reason for the treatment or threatened treatment.
2. In Penhall-Jones v New South Wales Buchanan J took this approach as the test of causation in victimisation complaints under the Disability Discrimination Act 1992 (Cth):

...the ground or reason relied on to establish breach of the relevant legal obligation need not be the sole factor but it must be a substantial and operative factor... It must afford a rational explanation, at least in part, 'why' an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation.[713]

1. To establish the casual nexus requires evidence and is a question of fact. A flow of events or contemporaneity of events is not necessarily victimisation, just because one event follows another. If there is no evidence on the face of the act complained of, apart from the subjective view of the complainant, then no basis for victimisation has been sustained.[714] Mere knowledge a person is asserting their rights is not sufficient to meet the test, a link must be established.
2. The ordinary civil standard of proof applies for victimisation claims.

1. At paragraphs [154] - [160] of her FAPOC, Ms Bashour claims:

154 Further or in the alternative, ANZ subjected the Applicant to the

following detriment:

(a) repeated directions to provide further medical evidence in circumstances where the Applicant had already provided sufficient medical evidence;

(b) refusing to allow the Applicant to work from home;

(c) the conduct set out at paragraph 42 above; (the content of each paragraph is included in the consideration of each claimed detriment below)

(d) the Direction to attend the Medical Examination;

(e) corresponding with the Applicant while she was on sick leave;

(f) the disciplinary process as set out at paragraphs 96, 98 and 102;

(g) requiring the Applicant to respond to and participate in the disciplinary process while on sick leave and in contravention of her medical advice;

(h) the conduct set out at paragraph 106;

(i) the Media Release and the subsequent related media statements and social media posts by ANZ as set out at paragraphs 107 to 114;

(j) constructive dismissal;

(k) the strike out application and Strike Out Order

(l) the derailment of the Federal Court Proceeding

(m) the conduct set out at paragraph 124; and

(n) the conduct set out at paragraph 115.1.

155 Further or in the alternative, Ms Babani and/or Ms Evans

subjected the Applicant to detriment:

(a) through the strike out application and Strike Out Order; and/or

(b) by failing to intervene to stop or remedy the conduct set out at subparagraphs 154(a), 154(b), 154(d), 154(e), 154(f), 154(g), 154(i), and 154(k) and 154(n) above.

155.1 Further or in the alternative, Ms Babani subjected the Applicant

to detriment:

(a) by engaging in the conduct set out at subparagraph 154(n) above; and/or

(a) by actively encouraging the conduct set out at subparagraph 154(i) above.

156 The abovenamed Respondents subjected the Applicant to the

detriments set out above because the Applicant made complaints to the Fair Work Commission and Federal Court of Australia about her flexible work arrangement and discrimination based on her parental status or status as a care giver, as set out at paragraphs 42 and 46 above.

157 The complaints pleaded in paragraph 156 above, being the FWC

Claim and Federal Court Proceeding, involve allegations that the Respondents to the Federal Court Proceeding, being ANZ and Mr Shaw, committed acts which would constitute a contravention of Parts 4 and/or 7 of the EO Act.

158 Further or in the alternative, the abovenamed Respondents

subjected the Applicant to the detriments set out above because the Applicant made complaints to Mr Chronican, Ms Babani and/or Ms Evans from 2 May 2014 about the direct and/or indirect discrimination and victimisation she suffered.

159 The complaints pleaded in paragraph 158 above involve

allegations that the Respondents and employees of ANZ committed acts which would constitute a contravention of Parts 4 and/or 7 of the EO Act.

160 In the premises, ANZ, Ms Babani and/or Ms Evans committed

victimisation pursuant to section 104 of the EO Act and, in so doing, contravened section 103 of the EO Act.

160.1 The detriments listed in paragraph 154 above, apart from

paragraph 154(j), 154(k) and 154(m),

(a) were part of a course of conduct engaged in by ANZ which was cumulatively inimical to the continuation of the Applicant's employment;

(b) further, or in the alternative, constituted Repudiation;

(c) brought about the termination of the Applicant's employment on 1 October 2014.

154. The Respondents deny the allegations in paragraph 154 and refer

to and repeat paragraphs 42, 86, 96, 98, 102, 106 - 114 - 115, 122 - 128, 141.2 - 141.4 and 144 above and say further that:

154.1. The conduct alleged at subparagraph 154(i) is

incapable of constituting a "detriment" within the meaning of section 104 of the EOA, by reason of the fact that it relates to matters outside the workplace and employment relationship and to publications by entities and persons other than ANZ; and

154.2. The conduct alleged at each of subparagraphs

154(k), (l) and (m) is incapable of constituting a "detriment" within the meaning of section 104 of the EOA by reason of the fact that it relates to matters outside the workplace and employment relationship and because the conduct alleged is in the nature of decisions, orders and rulings made by VCAT, the Supreme Court, the Federal Circuit Court and the Federal Court and accordingly, the Applicant is attempting to pursue a collateral challenge to the decisions made by that Tribunal and those Courts.

155. The Respondents deny the allegations in paragraph 155 and say

further that in all the circumstances, including the position occupied by the Second and Third Respondents and the responsibilities and duties of each:

155.1 The mere fact that the Second and Third

Respondents received emails sent to them by the Applicant was incapable of constituting the subjection of the Applicant to a detriment within the meaning of section 104 of the EOA; and

155.2 The fact that the Second and Third Respondents

received unsolicited emails from the Applicant was incapable of constituting a "failure to intervene or remedy" the conduct of others, or of constituting a detriment within the meaning of section 104 of the EOA.

155.1. The Respondents deny the allegations in paragraph 155.1.

156. The Respondents deny the allegations in paragraph 156.

157. The Respondents admit allegations in paragraph 157

158. The Respondents deny the allegations in paragraph 158.

159. The Respondents admit the allegations in paragraph 159.

160. The Respondents deny the allegations in paragraph 160.

160.1. The Respondents deny the allegations in paragraph 160.1, refer

to and repeat paragraph 140.4 above in this Further Amended Defence, and say further that the Applicant's employment was not terminated and she resigned from her employment on 1 October 2014.[715]

1. The parties agree on the legal principles that apply to the claim for victimisation although there is dispute as to whether the conduct claimed by Ms Bashour factually occurred, falls within the definition of detriment, or is causally related.
2. Ms Bashour's submission is that the alleged detrimental conduct by ANZ as set out at FAPOC [154] - [155.1] falls within section 104(1)(g) of the EO Act, namely, because she alleged ANZ contravened provisions in Part 4 and Part 7 of the EO Act. Section 104(2) provides that it is sufficient for subsection (1)(g) that the allegation states the act or omission that would constitute the contravention, without actually stating the EO Act has been contravened. This is not in dispute between the parties.
3. In the Fair Work Commission and Federal Court proceedings, Ms Bashour alleged ANZ discriminated against her on the basis of her carer's responsibilities in contravention of section 18 of the EO Act and the failure to accommodate her responsibilities as a parent or carer in contravention of section 19 of the EO Act. On 2 May 2014, Ms Bashour made internal complaints to the second, third and fourth respondents. Ms Bashour's VCAT application dated 20 October 2014 contained allegations the respondents had breached sections 18, 20 and 103, contained in Parts 4 and 7 of the EO Act. The 'unfavourable treatment' described in the FAPOC paragraphs [154] to [155.1] contravenes Part 4 of the EO Act and the inference should be drawn it was to punish Ms Bashour because of the allegations she had made.
4. Rejecting ANZ's submissions that her claims of victimisation constitute an impermissible collateral challenge against the decisions and orders of other courts and VCAT, Ms Bashour submitted the claims are concerned with ANZ's conduct in the litigation. The objectional conduct by ANZ in the course of litigation caused detriment to her and is the legitimate subject of a claim of victimisation. She submitted that litigants are not at liberty to defend proceedings brought against them without regard to the exacerbation of hurt and injury their conduct may cause to applicants, relying on Coyne v Citizen Finance Ltd,[716] and Ahmed v Harbour Radio Pty Ltd.[717]
5. Ms Bashour rejected ANZ's defence that conduct 'outside the workplace and employment relationship' should be excluded and submitted the phrase 'any detriment' contemplates the conduct she relies on.

1. ANZ characterised the claimed detriments into three categories: 'alleged employment actions',[718] 'alleged litigation actions'[719] and 'alleged media actions.'[720] Accompanying each of these alleged actions are alleged failures of Ms Babani and/or Ms Evans to stop or remedy them.[721]
2. ANZ's submissions separately address the claimed detriments in [154(c)] and [154(n)] of Ms Bashour's FAPOC.
3. ANZ submits that in addition to there being categories of conduct incapable of constituting detriment, and evidence that other categories of conduct did not cause detriment, the requisite causal connection necessary to make out a victimisation claim is absent on the evidence with respect to every aspect of conduct upon which the claim depends.[722]

1. Alleged employment actions are said to include [154] (a), (b), (g) and (j). ANZ submits each of these actions did not occur.
2. Further, ANZ characterises [154] (d), (e) and (f) as alleged employment actions which they submit did occur, but did not entail detriment to Ms Bashour.
3. ANZ submits the alleged employment actions were not engaged in because of Ms Bashour's complaints. At its highest there is a temporal connection in that the direction to attend the IME, the correspondence whilst on sick leave, and the disciplinary process each post-dated her complaints. There is no evidence of a causal connection between those events and Ms Bashour's complaints. There is no evidence a person at ANZ was motivated as such. For example, Ms Edelman and Mr Zeman made the requests, directions and correspondence comprising the alleged employment actions but there is no evidence either was motivated by Ms Bashour's complaints.
4. ANZ submits that no improper motive should be inferred from discussions between Ms Bashour's managers, Employee Relations and ANZ's legal advisers.[723]
5. ANZ submits regarding [155(b)] Ms Babani and Ms Evans were under no duty 'to intervene to stop or remedy' the direction requiring Ms Bashour to attend the independent medical assessment, ANZ corresponding with Ms Bashour whilst on sick leave, or the disciplinary process. Further, if there was a relevant failure to act, it was not because of Ms Bashour's complaints.

1. Alleged litigation actions are said to include [154(h)], [154(k)], [154(l)] and [154(m)].
2. ANZ submits each of the actions are orthodox steps appropriate to be taken by any party to litigation. They submit that Ms Bashour has not engaged with the threshold issue of whether such actions are capable of constituting victimisation, not referencing any authorities as to how the alleged litigation actions can be characterised as victimisation.[724]
3. ANZ submits the allegations in paragraphs [154(l)] and [154(m)] did not occur. There is no evidence in support of ANZ's 'derailing' of proceedings in the Federal Court or attempting to crush Ms Bashour against an unreasonable timetable of proceedings.
4. ANZ submits the events in paragraphs [154(h)] and [154(k)] did occur, but (a) the strike out application (successfully appealed by Ms Bashour) ought not be the subject of collateral challenge by dint of being characterised as 'victimisation' and, (b) the transfer of the Federal Circuit Court proceedings to the Federal Court was a regularly made order of the court that did not cause detriment to Ms Bashour.
5. ANZ submits with respect to the alleged litigation actions, there is no evidence of the requisite causal connection and mental state.
6. There is no evidence ANZ's alleged litigation actions were because Ms Bashour had made complaints to the Fair Work Commission, Federal Court and ANZ senior management.
7. As with the alleged employment actions, ANZ submits Ms Babani and Ms Evans were under no obligation to intervene to stop or remedy the strike out application or the application to transfer the Federal Circuit Court proceedings to the Federal Court of Australia.

1. ANZ submit the ANZ media release dated 8 August 2014 was accurate and did not contain misleading information about the litigation and dispute.
2. The media release was issued in response to submissions made by Ms Bashour in open court and reported in The Age that she had been directed to undergo an internal pelvic examination. The direction issued to Ms Bashour on 4 July 2014 required her to attend the independent medical examination. It did not refer to an internal pelvic examination or pelvic examination. Mr Ries gave evidence he sought assurances ANZ had not directed Ms Bashour attend for an internal pelvic examination. Mr Ries' evidence was, '[w]e sought to correct the facts around us sending Ms Bashour for an internal pelvic exam. That was it.'[725]
3. Further, though Ms Babani was informed, ANZ submits there is no evidence she 'actively encouraged the alleged media action'.
4. It is submitted that the only finding open to the Tribunal is that the alleged media action was not engaged in by ANZ because Ms Bashour had made complaints to the Fair Work Commission, Federal Court or ANZ senior management. Mr Ries confirmed in his evidence he was not motivated by any complaints Ms Bashour had made. Ms Babani confirmed in evidence she had not done anything differently because of the proceedings Ms Bashour had commenced in the Fair Work Commission and Federal Court or the complaints she had made to ANZ senior managers.

1. With respect to paragraph [154(n)], ANZ acknowledges that on 8 August 2014 Ms Babani sent an email to the Sex Discrimination Commissioner with a link to the Age article and ANZ media release. There is no evidence this caused a detriment to Ms Bashour or that it was done because of her proceedings in the Fair Work Commission and Federal Court or her complaints to ANZ senior management. It is submitted that this email did no more than direct attention to the release, and did not contain or repeat so-called false, misleading or damaging statements regarding the applicant. ANZ submits it was not even put to Ms Babani that she had a malign purpose in so acting.[726]
2. Further, with respect to paragraph [154(n)], ANZ submits the Tribunal should find there is no foundation for the allegation that either ANZ or Ms Babani had any control over international media outlets.[727]
3. With respect to paragraph [154(c)], ANZ submits the ANZ's Flexible Work Arrangements Policy was not amended in the manner or for the purpose alleged and is therefore incapable of constituting victimisation.[728]
4. In response to Ms Bashour's submission at paragraph [160.1] that each of the detriments in [154] except (j), (k) and (m) were part of a course of conduct 'cumulatively inimical to the continuation of Ms Bashour's employment' or which constituted repudiation and brought about the termination of her employment, ANZ submits there is no basis for such a claim to succeed. Ms Bashour provides no authorities for the implication of the terms of cooperation, good faith and reasonableness in her employment contract she seeks to rely upon. Accordingly, there is no adequate foundation for the repudiation claim.[729]

[154(a)] - Repeated directions to provide further medical evidence in circumstances where the Applicant had already provided sufficient medical evidence

1. Ms Bashour submitted evidence of the repeated requests by ANZ for medical information were not part of a rational attempt to obtain relevant information about her disabilities or to engage in a genuine consultation about accommodating her requested adjustments.
2. ANZ denied paragraph [154(a)] occurred and denied it constituted a detriment in circumstances where ANZ was attempting to obtain relevant medical information about the disabilities Ms Bashour was relying on in the context of seeking adjustments.
3. The evidence about the repeated directions to provide medical evidence is as follows:
   • On 28 February 2014, Ms Edelman emailed Ms Bashour to ask her to provide a medical certificate that she was fit for work. Ms Bashour had been on sick leave for almost all of January and February of 2014.
   • On 2 March 2014, in preparation for returning to work, Ms Bashour emailed Mr Shaw and advised him that '...under advice of my treating specialist I will not be sitting with the team.'[730] On 3 and 4 March 2014 Ms Edelman repeated her request by email to Ms Bashour.
   • On 3 March 2014, Ms Edelman rang Ms Bashour about the fitness for work certificate and Ms Bashour queried where it was documented that a medical certificate was required.[731]
   • On 4 March 2014, Ms Edelman requested from Ms Bashour her specialist's advice regarding her request she 'not sit with the team'.[732]
   • On 7 March 2014, Ms Bashour responded and provided a letter dated 27 February 2014 from Professor Joubert.
   • On 12 March 2014, Ms Edelman sought further medical information as Ms Bashour had declined a 'face to face' meeting as she had a pre-existing engagement and for health and safety reasons. Ms Edelman noted:

The doctor's advice that you have provided regarding your seating arrangements when at the ANZ Centre does not include any advice or recommendations regarding your ability to communicate with me or others in the team. Given the health and safety concerns you have now raised, ANZ requires more information about your medical condition, prognosis and any adjustments or accommodations you require as a result of your condition.[733]

• On 20 March 2014, Ms Edelman emailed a letter to Ms Bashour referring to the advice received about her sitting away from the team and seeking her specialist's advice regarding '...the precise parameters of the medical restrictions recommended by your specialist.'[734]
• On 28 March 2014, Ms Edelman received a letter from Dr Joubert dated 27 March 2014, stating Ms Bashour should remain where she is currently seated, no other restrictions need to be in place; electronic and telephonic communications are in order, and that she is fully able to perform her normal duties.[735]
• On 9 April 2014, Ms Edelman sent a letter to Ms Bashour confirming ANZ is able to temporarily accommodate her sitting away from the team, and partially accommodate the inferred recommended restriction that her communications occur by way of telephone and electronic means, noting there will be times, as her line manager when '...it will be necessary for me to meet with you face to face.'[736] The letter also seeks further information, in particular her diagnosis, her prognosis, how long the restrictions will be necessary, her neurologist's name and confirmation that their speciality is appropriate for the diagnosis made and the assessment of fitness for work.[737]
• On 18 May 2014, Ms Bashour emailed Mr Shaw and Ms Edelman attaching the letter from Dr Chew dated 15 May 2014. She advises she will '...not be able to commute into Docklands between now and maternity leave.'[738]
• On 21 May 2014, Ms Edelman emailed Ms Bashour attaching a letter of the same date seeking her consent to contact Dr Chew, which she describes as standard practice where workplace restrictions are sought, and stating that ANZ requires more information to comply with its health and safety obligations. If the consent was not provided, Ms Edelman asked for Dr Chew to address six questions included in the letter by 29 May 2014.[739]
• On 30 May 2014, Ms Bashour emailed Ms Edelman her response to the request to Dr Chew.[740]
• On 3 June 2014, Ms Edelman emailed Ms Bashour attaching a letter of the same date repeating her request for information from Dr Chew as well as seeking his opinion about some proposed adjustments.[741]
• On 23 June 2014, Mr Zeman (after reviewing the complaint Ms Bashour had sent to Ms Babani) repeated Ms Edelman's request for information from Dr Chew addressing the six questions and seeking his advice about the proposed adjustments.[742]
• On 30 June 2014, Ms Bashour provided Mr Zeman with Dr Chew's letter of the same date.[743]

1. In summary, Ms Edelman asked for a fitness for work certificate, and repeated this request by email twice in circumstances where Ms Bashour had been on sick leave for almost all of two months. On 7 March 2014, Ms Bashour responded to Ms Edelman's emails.
2. Ms Edelman asked for a medical opinion when Ms Bashour stated that on medical advice she was not to sit with the team. Ms Edelman also sought clarification whether Ms Bashour's medical advice was not to have face to face contact with her.
3. Further, Ms Edelman sought clarification of Dr Chew's letter dated 18 May 2014 regarding whether Ms Bashour could attend the workplace. She repeated this request on 3 June 2014, together with some suggested adjustments, and Mr Zeman directed Ms Bashour comply with that request on 23 June 2014.
4. As previously referred to, the Federal Court has held there should be implied by law into contracts of employment that an employer may require an employee to furnish medical evidence of the employee's continuing fitness to undertake duties, and to attend a medical examination to confirm that fitness.[744]
5. In my view, the premise of the action constituting the detriment is not made out. Whilst there are repeated directions for medical evidence, they are not made in circumstances where sufficient medical evidence had been provided.
6. In the first instance, Ms Bashour returned from extended sick leave. Despite the fact Ms Bashour was advised the ANZ sick leave policy only requires a medical certificate to explain absences from work, in my view the request for a fitness for work certificate was reasonable in circumstances where Ms Bashour had been absent on extended sick leave, but for three days, from Christmas 2013 until 28 February 2014 and had left early and lodged an Incident Notification Form on the single day she had attended the office. As Ms Bashour did not reply to the first request, the request was repeated twice by email and Ms Edelman rang Ms Bashour.
7. Secondly, Ms Bashour specified that she could not sit with the team. Ms Edelman asked her for her medical advice to establish this requirement. In her evidence Ms Bashour stated 'hot-desking' was normal practice and that Ms Shaw had encouraged them to do so.[745] If that was the case it is unclear why Ms Bashour provided medical advice from Dr Joubert dated 27 February 2014 specifying '...she does not sit in her usual work place with the team.'[746]
8. Thirdly, on 11 March 2014, Ms Bashour declined a meeting invitation from Ms Edelman because she had a prior engagement and because of 'health and safety concerns'.[747] This is ambiguous, and Dr Joubert's letter of 27 February 2014 did not specify that Ms Bashour could not meet with Ms Edelman because of health and safety reasons. It is Dr Joubert's letter of 27 March 2014 which states '[n]o other restrictions need to be in place. Electronic and telephonic communications are in order.'[748] Ms Edelman made two requests to clarify what 'electronic and telephonic communications are in order' meant.
9. In her oral evidence in chief, Ms Bashour described Ms Edelman's seeking to meet her face to face as an attempt by Ms Edelman to 'torment' her.[749]
10. On 18 May 2014, Ms Bashour informed Ms Edelman that she could not attend the workplace 'between now and maternity leave' due to pelvic instability. In response, on 21 May 2014, Ms Edelman sought consent to contact Dr Chew directly, or alternatively, asked Ms Bashour to ask him to answer six questions related to Ms Bashour's diagnosis, prognosis and required adjustments. Having received no further material from Dr Chew, on 3 June 2014, she repeated the request and included some proposed adjustments for his consideration. On 23 June 2014, Mr Zeman directed compliance with the request. The request for medical evidence was not complied with, hence the repeated requests.
11. In cross-examination it was not put to Ms Edelman she had made repeated requests for medical evidence in circumstances where sufficient medical evidence had already been provided.
12. On the facts I find the repeated requests for medical evidence were reasonable and not made in circumstances where Ms Bashour 'had already provided sufficient medical evidence'. It is also clear from the requests by Ms Edelman in her emails and letters that the requests were made because ANZ was seeking medical evidence to ensure Ms Bashour was fit to return to work and to accommodate the adjustments sought by Ms Bashour on her return such as not sitting with the team, not having face to face meetings with Ms Edelman, and not attending the workplace. There is no evidence it was because she had acted in accordance with section 104(1)(g), such as by her complaints to Ms Babani or action in the Fair Work Commission.
13. The premise of the factual scenario in [154(a)] has not been established.
14. If the factual premise is made out, I turn to consider whether the repeated requests for medical information constituted a detriment.
15. The evidence of detriment to Ms Bashour is described in her statements as 'distress' and she describes ANZ's conduct as 'mistreatment'.[750] On 19 June 2014, when Ms Bashour makes a complaint about Ms Edelman's request dated 3 June 2014, she states she was '...physically suffering and in great fear for the safety of my unborn child.'[751] She also stated, 'I was petrified of the consequences that all the stress from the ANZ's directions and the unfair treatment was having on my unborn child and I perceived it as being a serious workplace and safety issue.'[752]
16. As noted above, whether something constitutes a detriment is an objective question, such that the loss, damage or injury suffered by the complainant must be something a reasonable person would consider a detriment. It is not trivial and includes humiliation and denigration.
17. The question of whether repeated directions for medical evidence constitutes a detriment is a question of fact to be determined in each individual case. The factual premise of the alleged detriment is not conceded by ANZ. Tropoulos is authority that '...whether something constitutes a detriment is an objective question, such that the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment.'[753]
18. Detriment in the employment context can include demotion, dismissal, transfer or loss of benefit, being moved to an inferior position, a reduction in pay or denial of overtime available to others. In Collins v Smith[754] (where the causal nexus for victimisation was not established), the alleged detriment in the employment context was the removal of Saturday shifts, threats to terminate employment and the refusal to provide a reference. In Tropoulos, the alleged detriment was a letter from the complainant's employer to the Queensland Law Society regarding the complainant's character, professional reputation and mental health. Although the question was not ultimately decided, it was held this could constitute a detriment as an aggravation of his mental condition and the disadvantage of being scrutinised by the Queensland Law Society on the basis he was no longer a fit and proper person to act as a legal practitioner.
19. In Mitchell v Clayton Utz & Ors[755] the meaning of 'detriment' in an application for leave to proceed under the Anti-Discrimination Act 1977 (NSW) was considered_._ In that case the complainant stated he intended to commence legal action against his former employer who wrote in reply '...it will not countenance any stalking, harassment or intimidation of its staff by persons who have an issue with the firm.'[756] Deputy President Hennessy, noting the complainant's reaction or interpretation does not make the email a 'detriment', stated the employer was entitled to express those views and that '[t]he test is an objective one. It is not sufficient for an employee to subjectively believe that he or she has been subject to a detriment.'[757]
20. In Sivananthan the complainant claimed he was victimised because he was directed to provide a medical certificate on every occasion that he took sick leave. It was held the direction appeared to have been given in accordance with the respondent's sick leave policy in response to a substantial number of absences on sick leave. The direction was not victimisation within the meaning of the Act.
21. On the facts of this case, I do not find the repeated requests for further medical evidence constitute a detriment. The requests were reasonable with respect to ANZ's employment responsibilities and obligations as an employer. The requests were repeated due to nature of Ms Bashour's responses, or absence thereof. Ms Bashour did not respond to Ms Edelman's first email of 28 February 2014. Ms Bashour did not respond to the request by Ms Edelman's email dated 3 March 2014 until 7 March 2014. In various correspondence she indicated she required adjustments such as not sitting with the team (email dated 2 March 2014), declining a meeting invitation in part because of 'health and safety reasons' and her 'doctor's advice' (emails dated 11 and 13 March 2014), and ultimately, not attending the workplace for work (email of 18 May 2014). Clarification was sought on these points, on multiple occasions, as at each time a request was made for information by ANZ on the basis it did not have sufficient information.
22. If, however, the conduct was established and did subject Ms Bashour to a detriment, I find it was not because of Ms Bashour's conduct under section 104(1)(g). Ms Edelman was not cross-examined about whether she made the requests for medical information because Ms Bashour had made allegations consistent with section 104(1)(g). She stated she was not aware Ms Bashour had raised a dispute through the ANZ dispute settlement process in late November 2013.[758] I note in her email dated 18 January 2014 Ms Bashour told Ms Edelman about her action in the Fair Work Commission.
23. When asked about Ms Bashour taking her right to work from home four days a week to the Fair Work Commission, Ms Edelman stated, 'I had no knowledge of what was in the Fair Work Commission proceedings ... I hadn't seen them, and they hadn't been discussed with me.'[759] She stated she was not aware ANZ had made offers to Ms Bashour to leave the bank in June and July 2014 and was not involved in any discussions that the bank thought Ms Bashour should leave.[760] It was not put to her the requests for further medical evidence were because of this action and she has provided a rational explanation evidenced in her emails and letters to Ms Bashour as to why the medical evidence was requested.
24. On 30 May 2014, Mr Zeman had a meeting with 'LE, MS and FF' ('LE' was Ms Edelman, 'MS' was Mark Shaw and 'FF' was likely Fiona Forrest, an in-house lawyer at ANZ).[761] The file note indicates they discussed Ms Bashour's response to the request for further information from Dr Chew. It states it was agreed that ANZ still required medical information from the specialist. The meeting notes refer to pressing the request, offering alternative arrangements, setting a deadline and advising if the deadline is not met '...may send to IME (and also referring to potential disciplinary action if directions not followed).'[762] There is no reference in this internal meeting note to the request being because of Ms Bashour's Fair Work Commission or Federal Court action or the complaints made to higher management.
25. I am not satisfied the requests were 'because' Ms Bashour made complaints or took proceedings to the Fair Work Commission or Federal Court. There is insufficient evidence it was a substantial reason for the request. Ms Edelman has given evidence as to why the requests were made. In the face of credible direct evidence, I accept this was the true basis for the action and I am not prepared to draw an inference otherwise.
26. I am not of the view there were repeated directions to provide further medical evidence where sufficient evidence had been provided. If there were, I am not satisfied the repeated directions subjected Ms Bashour to a detriment. If it was a detriment the requests were not because of the actions under section 104(1)(g). Regarding paragraph [154(a)], I do not find victimisation under section 103 established on the balance of probabilities.

[154(b)] refusing to allow the Applicant to work from home

1. The parameter of this claim is not specified to identify at which point of her employment Ms Bashour claims ANZ refused to allow her to work from home.
2. Ms Bashour's working from home arrangements were a continuing subject of dispute, with ANZ denying the existence of a four day working from home agreement from the time of Mr Shaw's meeting with Ms Bashour on 11 November 2013. From 18 May 2014 Ms Bashour stated she was working from home five days a week and ANZ sought further information from Dr Chew regarding the extent to which her pelvic instability prevented her attending the workplace at all.
3. I will consider the [154(b)] claim as being that ANZ refused to allow the applicant to work from home five days a week from 18 May 2014. This is after Ms Bashour's actions commenced in the Fair Work Commission and Federal Court as well as her complaints to senior management dated 5 March 2014 and 2 May 2014. The claim is also considered in the context of further complaints she made to senior management on 19 June 2014 and 15 July 2014.
4. Ms Bashour's requirement to work from home five days a week from 18 May 2014 arose in the context of ANZ not agreeing to her working from home four days a week.
5. On 20 March 2014, the outcome of the flexible work arrangement assessment, conducted in the context of this dispute, advised Ms Bashour she was expected to be at the workplace five days per fortnight and at least two days in any week from Monday 24 March 2014.[763] Ms Bashour's email in response dated 21 March 2014 stated, in summary, that the matter would be considered by the Federal Court, that her contract allowed her to work from home four days a week, she had not requested a flexible work arrangement assessment be conducted and would not be taking one up, she was unable to re-arrange her childcare at such short notice, and that:

I will continue performing my duties remotely to an exceptional standard as I have always done.

Next week's office day will be Tuesday.[764]

1. On 25 March 2014, Ms Edelman responded to Ms Bashour stating that ANZ did not believe the four-day arrangement was the status quo, nor was ANZ obliged to maintain it. Ms Edelman notes Ms Bashour's comments regarding difficulty rearranging her childcare arrangements and offered Ms Bashour four weeks to make arrangements that will allow her to transition to the five day per fortnight arrangement.[765]
2. Thereafter Ms Bashour attended the workplace three times, on 25 March, 1 April and 11 April 2014. There were a series of emails between Ms Edelman, who maintained the outcome of the flexible work arrangement assessment, that Ms Bashour attend the workplace on a five-day per fortnight arrangement from 22 April 2014, and Ms Bashour maintaining her contract had been varied to enable her to work from home four days a week. This issue was not resolved when, on 18 May 2014, Ms Bashour emailed Ms Edelman advising she would be working from home five days a week on medical grounds, attaching Dr Chew's letter dated 15 May 2014.[766]
3. With respect to Ms Bashour's email dated 18 May 2014, Ms Edelman wrote to her on 21 May 2014 seeking consent to contact Dr Chew directly, or asked Ms Bashour to obtain Dr Chew's responses to further questions regarding her condition of pelvic instability. This request, in its iterations, was repeated on 3 June 2014, including seeking Dr Chew's opinion about proposed adjustments, on 23 June 2014 from Mr Zeman, and on 4, 10 and 14 July 2014 when Mr Zeman directed Ms Bashour to attend the IME so ANZ could obtain the information it sought.
4. The evidence supports a finding ANZ was in the process of seeking further information from Dr Chew and, from 4 July 2014, from Dr White regarding whether Ms Bashour could attend the workplace or if she should be working from home five days per week. In my view ANZ had not definitively concluded that Ms Bashour was not permitted to work five days from home.
5. Further, in her evidence, a hypothetical scenario was put to Ms Edelman regarding what her next step would have been if the information from Dr Chew included an opinion Ms Bashour was '...not fit to work in the office, but she is fit to work from home because then she can stand and move around, or she can monitor her pain'.[767] Ms Edelman stated she '...would have suggested working from home at that point if that could be medically accommodated.'[768] The same hypothetical was put to Mr Zeman, who responded:

...that's a very clear position to be in and that - with that clarity, I would have gone to the relevant manager, which it would have been Mark Shaw at the time, recommended to him that he adjust [the] role for the temporary period of the remaining time before parental leave to allow Ms Bashour to work from home, given that was considered safe by her doctor and given that coming to the office, albeit a requirement of the role, would have been considered unsafe by the sounds of what you're saying in the hypothetical. That would have been my recommendation.[769]

1. Although the issue of Ms Bashour working from home four days a week was still in dispute, both the contemporaneous evidence at the time of ANZ seeking further medical information and the response by the witnesses to the hypothetical scenario at hearing suggest ANZ was open for Ms Bashour to work from home five days a week if the evidence supported that Ms Bashour required this for medical reasons.
2. Whilst the evidence suggests ANZ had not agreed to Ms Bashour working from home five days a week, this does not mean the opposite, that they had refused to allow her to work from home. It was clearly still in the process of a decision.
3. On the basis of this evidence, I am not satisfied the factual basis of the claimed detriment in [154(b)], namely that of ANZ refusing to allow the applicant to work from home, is established. In terms of victimisation under section 104(1), the factual basis of the claimed 'detriment' is not made out. I do not find victimisation under section 103 made out on the balance of probabilities.

[154(c)] the conduct set out at paragraph 42 above

On 20 January 2014, ANZ made changes to its Flexible Work Arrangements policy by adding a Schedule to that policy that only applied to Australia and to caregivers. That new Schedule provided that ANZ could unilaterally end flexible work arrangements (for those arrangements granted for care related reasons) if there are reasonable business grounds for doing so. ANZ provided this new version of the policy to the Fair Work Commission in its Employer Response, which falsely implied that this version post-dating the FWC Claim applied to the events in the FWC Claim (the False Implication).[770]

1. Ms Bashour has maintained the ANZ Flexible Work Arrangements Policy did not apply to her, as her four-day work from home arrangement was via a variation to her contract of employment. ANZ denies there was any variation to her contract of employment and has argued that even if there was an arrangement for her to work from home four days a week, which is denied, it was via the Flexible Work Arrangements Policy which gives it the power to end a flexible work arrangement if there are reasonable business grounds for doing so. Ms Bashour claims ANZ added the schedule to the Flexible Work Arrangement Policy after she commenced proceedings in the Fair Work Commission and made the false implication to the Commission it pre-dated her claim. Ms Bashour claims the creation of a false implication regarding the schedule by ANZ constitutes victimisation.
2. Contrary to her FAPOC, in closing submissions Ms Bashour submitted that to the extent the Tribunal may be satisfied that the ANZ Flexible Work Arrangement Policy contained a caregivers schedule prior to January 2014, deficiencies in ANZ systems and processes made it impossible for her to reasonably ascertain that fact.[771]
3. Ms Bashour's submission, namely that deficiencies in the ANZ systems and processes made it impossible for her to reasonably ascertain that the ANZ Flexible Work Arrangements Policy contained a schedule prior to January 2014, is inconsistent with the pleaded claim. Further, Ms Van Vliet from ANZ was called as a witness, and it was not put to her that schedules to the ANZ Flexible Work Arrangement policy were impossible to find. Ms Van Vliet was asked about how the 'select your county and business area' function on MAX was recently introduced and some people may have been incurring problems finding the correct schedules, but that is about the furthest the questioning went on that point.[772] It was not put to Ms Van Vliet that it was not reasonably ascertainable, because of deficiencies in ANZ's systems and processes, which schedules applied to Ms Bashour prior to January 2014. Ms Bashour also did not give any evidence about the schedule being impossible to find in support of her submission.[773] There is no reference to this in any of her statements, and she did not raise it in her examination in chief at the hearing, despite Ms Van Vliet's statement being filed and served in 2017.
4. Ms Van Vliet's position at the time of giving her statement was Head of Talent, Resourcing and Diversity at ANZ. She is now General Manager of Talent and Culture in Technology at ANZ.
5. Ms Van Vliet's evidence was the ANZ Flexible Work Arrangements Policy has had an Australia Schedule since it was drafted in 2011.[774]
6. Ms Van Vliet noted:

The Flexible Working Arrangements Policy contains schedules that take into account the different legislative requirements in certain countries, including Australia and is read in conjunction with its schedules. The Australia Schedule, for example, deals specifically with childcare related requests for flexible work arrangements because it has been drafted to reflect Australian legislative requirements under the Fair Work Act 2009 (Cth).[775]

1. The schedule provides ANZ can end a childcare related flexible work arrangement if an employee is no longer eligible or on ANZ's reasonable business grounds. ANZ continues to have the right to end flexible work arrangements on reasonable business grounds and there was no amendment to the Schedule as a result of Ms Bashour's General Protection application in the Fair Work Commission. In February 2014 the Flexible Work Arrangements Policy had its annual review and no substantive changes were made.
2. Ms Van Vliet stated that to access policies applicable to the employee on MAX at the top right-hand side of the screen an employee has to select the country and business area fields from a drop-down menu. This was introduced in an upgrade to MAX in October 2013. If the 'country field' is not populated, then only the overarching or 'global' policy will appear.
3. Ms Van Vliet noted the printout of the ANZ Flexible Work Arrangement Policy documents exhibited to Ms Bashour's statement which are each dated 18 October 2013, but accessed 18 November 2013 and 6 January 2014 state there is no schedule attached to the Policy. She notes these documents indicate Ms Bashour did not nominate the country field, noting on each there is a reminder in the top right-hand corner to select the county and business area on the MAX homepage.[776]
4. Ms Van Vliet's evidence was not disturbed in cross-examination. I accept the accuracy of the contents of her evidence. The evidence supports a finding that the factual premise in paragraph [154(c)] is incorrect. It is clear that on 20 January 2014 ANZ did not change its Flexible Work Arrangements Policy by adding a schedule that only applied to Australia and to caregivers. Further, it is incorrect to state that ANZ, by providing this version to the Fair Work Commission, made a 'false implication' that the post-dated schedule applied to events described in Ms Bashour's Fair Work Commission claim.
5. In terms of victimisation under section 104(1), the factual basis of the claimed 'detriment' is not made out. ANZ's Flexible Work Arrangements Policy has had a schedule since it was created in 2011. Its creation is not a detriment, and its existence predates any actions by Ms Bashour contemplated in section 104(1)(g).

[154(d)] the Direction to attend the Medical Examination

1. In Ms Bashour's opening submissions regarding victimisation, she submitted:
   • She was not able to physically or mentally comply with the Direction to attend the medical assessment;[777]
   • In addition to being physically and mentally unable to attend at the time scheduled by the first respondent, she reasonably apprehended that, being an obstetric examination, the appointment with Dr White, the gynaecologist-obstetrician chosen by ANZ, would involve an intimate and or/internal examination;[778]
   • The 'Request for Medical Assessment' provided to Dr White by ANZ dated 11 July 2014 asked for Dr White's opinion on a number of issues but did not specify the nature of the examination which Dr White should undertake to obtain that information. It was a reasonable assumption that a pelvic examination would be required;[779]
   • ANZ did not inform her as part of its correspondence that she would not have to undergo a pelvic or gynaecological examination, despite being on notice that she was concerned about this aspect of the examination.[780]
2. In Ms Bashour's closing submissions about victimisation, she submitted:
   • Mr Zeman's letter of instruction to Dr White asked a series of questions about her diagnosis. He did not know and did not clarify the nature of the examination Dr White would make, and asked for 'the diagnosis of any condition Katherine presently suffers'.[781]
   • Neither the letter of instruction, nor letter to the applicant directing her to attend, specified the type of examination the applicant would be required to undergo.[782]
   • Professor O'Connor's opinion was that a vaginal examination was necessary to assess pelvic instability, and that in absence of a detailed explanation of what type of examination was to be performed at her assessment it was reasonable for Ms Bashour to assume that a gynaecologist such as Dr White would perform such an examination.[783]
3. Dr White said she would decide on the nature of the examination after she had taken a history. That might involve an internal examination if there were symptoms not explainable by pelvic instability.[784]

1. ANZ submitted the alleged employment action described in [154(d)] did occur but did not entail detriment to Ms Bashour.
2. ANZ submitted the direction to attend the IME was not because of Ms Bashour's complaints. At its highest, there is a temporal connection in the sense that the direction to attend the IME post-dated her complaints. There is insufficient evidence of a causal connection between this and Ms Bashour's complaints, or that the complaints were a substantial reason for the conduct. Ms Edelman and Mr Zeman made the relevant requests, directions and correspondence but there is no evidence Ms Bashour's complaints were a substantial reason for their conduct.

1. Ms Bashour claims under paragraph [154(d)] she was subjected to or threatened to be subject to a detriment under section 104 by the direction to attend the IME because she believed she may have had to undergo an internal examination.
2. Her email to Mr Zeman dated 11 July 2014 stated:

In addition to all the reasons that currently prevent me from attending the Docklands office (as previously provided to ANZ) I have recently received blood test results which make it very risky for me to travel. Otherwise, I would be happy to attend the medical appointment with Dr White.[785]

1. In her email headed 'Complaint' dated 14 July 2014 and sent on 15 July 2014[786] to Mr Zeman, Ms Babani and Ms Patterson, she states:

In your email to me sent on 14 July

Your email of 14 July 2014 also contains numerous misstatements.

You have stated that the direction to attend the medical assessment is what caused my distress. At no stage did I ever refuse or state to Liana, or anyone else, that the direction to attend a medical assessment was the distressing factor.

Before making such determinations you should confirm the grounds. In particular, I would like to inform you that the grounds of distress are:

i). The alternation of questions by you in order to justify a direction despite the evidence you have on hand;

ii). Out of all the Employee Relations Advisors across the Bank, you have taken carriage of this file - despite the serious allegations I have made against you personally.

iii). That I undergo an invasive gynaecological assessment for your viewing - and that I am to contact you should I want a copy of the report.

iv). That you failed to consult me to check my availability regarding booking times.

Additionally, you have drawn another incorrect conclusion by misquoting me in your email when you stated that:

'you said that you would otherwise be happy to attend the medical appointment with Dr White'...contradicts your earlier response to being directed to attend the appointment as recorded in your email to Liana.

Once again, this is untrue. I never recorded this as being the reason. If you refer back to my email and the context of the sentence, I indicated that I would be happy to attend if I could travel. This is due to the fact that I have nothing to conceal. There is no other communication by me which contradicts this..[787]

1. In this email Ms Bashour states it is not the direction to attend the medical assessment that causes her distress, but factors i) through to iv) which includes at iii) '[t]hat I undergo an invasive gynaecological assessment for your viewing - and that I am to contact you should I want a copy of the report.'
2. In her first statement, in 2017, Ms Bashour reports her reaction as follows:

On 4 July 2014, Mr Zeman wrote to me and informed me that he had made an appointment for a medical examination with a gynaecologist-obstetrician chosen by ANZ, Dr Bernadette White, scheduled for 15 July 2014. Mr Zeman directed me to attend and warned that there may be disciplinary action if I failed to attend (Direction to Attend the To a Medical Examination). A copy of letter from Mr Zeman addressed to me dated 4 July 2014 appears behind Tab 134.

The appointment was arranged without my consent, without consultation with me and without my knowledge.

I found this direction offensive and intrusive given what is involved in an obstetric examination, particularly as I felt that the appointment was arranged without any justification whatsoever. At that point, I had provided three separate reports to ANZ regarding my pelvic instability which clearly answered ANZ's questions.

I was highly distressed by the direction to participate in an intimate examination for a non-work related condition which is a common and temporary condition of pregnancy. I felt it was a complete breach of my privacy and dignity.

I was also extremely upset and concerned that the results of this private medical examination were to go directly to members of the ANZ management team and if I wanted to access a copy of the report, I was to contact Mr Zeman for his permission.[788]

1. Mr Zeman stated that after reviewing both of Dr Chew's reports he reached the view that:
   1. It remained unclear whether Ms Bashour was fit for work and if so, how many days per week and in what location/s. On the one hand, Dr Chew appeared to be saying that Ms Bashour was unable to travel at all, yet on the other hand continued to refer to not being able to travel 'long distances' (without explaining what amounted to a 'long distance');
   2. Dr Chew's letter said that Ms Bashour was 'fit for work', but saying that Ms Bashour was 'fit for work' was very unclear, especially as attendance at Docklands was a requirement of her role, for at least part of each week. Dr Chew was apparently saying that Ms Bashour was 'fit for work', while indicating that she was unfit to attend the workplace at all;
   3. ANZ still had no clear or detailed medical evidence in support of the any necessary restriction (not being able to commute to ANZ at the Docklands until the commencement of her parental leave); and
   4. Dr Chew had not provided a medical opinion on all of the proposed measures ANZ was able to put in place to assist Ms Bashour to attend work at the Docklands.[789]
2. In her evidence Ms Edelman stated:

Well, the bank wanted the IME to be undertaken so that they could form a view based on the independent medical information, as to whether she should continue to work from home, or whether she should continue to come into the workplace at least part of the time.[790]

1. I have previously found the direction to attend the IME was reasonable given the insufficiency of medical information. The test for detriment is objective and is defined in section 4 to include humiliation and denigration. In the employment context detriment has been noted to include demotion, dismissal, transfer or loss of benefit. Ronalds and Raper state that a requirement that an employee attend an IME on a reasonable basis may not be a detriment when it arises under an employer's obligation to provide a safe place of work.[791]
2. On 11 July 2014 the reason Ms Bashour gave for not attending the IME was that recent blood tests made it risky for her to travel, otherwise she was happy to attend. In her email of complaint dated 14 July 2014 to Mr Zeman she states, 'At no stage did I ever refuse or state to Liana, or anyone else, that the direction to attend a medical assessment was the distressing factor.'[792] She then lists four grounds of distress, which, alongside the fact of Mr Zeman's involvement with her file, and not being consulted about the time and date of the appointment, includes having to submit to 'an invasive gynaecological examination for your viewing'. She distinguishes between the direction to attend the medical examination, as not being distressing, and the factors at i) - iv) in her complaint, which are.
3. In the discrimination case Varas v Fairfield City Council it was held that a request to attend a medical appointment did not constitute a detriment:

Directing or requesting an employee to attend upon a doctor in the circumstances in which the appellant was called upon to attend upon Dr Korner was nothing other than a normal incident of employment. Paraphrasing Goldberg J (see Thompson at [54]), it was reasonable for the Council to find out more about the appellant's condition, including the obtaining of a report from a psychiatrist...[793]

1. In the discrimination case Thompson v IGT (Australia) Pty Limited, the Federal Court considered an application for interlocutory relief that the respondent withdraw its request the applicant undertake a psychiatric assessment. Goldberg J, having regard to the applicant's history, did not consider the employer's request unreasonable and stated:

The following principles are well established. An employer may give an employee a lawful and reasonable direction, and it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer.[794]

1. Noting the standard or test of the lawfulness of a direction is reasonableness, Goldberg J stated:

It follows, in my view, that there are circumstances in which a requirement to provide medical information to one's employer, provided it is made on reasonable terms and is shown to be reasonably necessary, does not constitute a detriment in employment but is, as Madgwick J observed, a necessary part or an incident of the employment.

...

In my opinion, it was reasonable, and probably necessary, for the respondent in this case to find out more about the applicant's condition, which included the obtaining of a report from a psychiatrist, especially having regard to the unexplained absences.[795]

1. Goldberg J found the request had been made, not on the grounds of the applicant's disability, but because of his continued absences without explanation, to enable the respondent to comply with occupational health and safety obligations and duties and to find out the extent to which the applicant could perform inherent requirements of his work.[796]
2. Evidence at the hearing concerned whether Ms Bashour's belief the IME would involve an internal examination was reasonable. Expert medical witnesses gave evidence about what would normally be required as part of an IME in the context of pelvic instability. Dr O'Connor's evidence was that he would conduct an internal examination to assess pelvic instability.[797] Professor Wallace and Dr Chew's evidence was that they did not require an internal examination to diagnose or assess pelvic instability. Dr White's evidence was she has never conducted an internal examination to diagnose pelvic instability but may conduct an external physical examination over clothing. Significantly, the letter from Mr Zeman to Dr White conceded the diagnosis of pelvic instability.
3. As noted above, detriment is determined objectively; a complainant's subjective belief that they have been subjected to a detriment is not sufficient to determine whether the direction constitutes a detriment. In this case a significant amount of evidence considered whether Ms Bashour's belief she would undergo an internal examination at the IME was reasonable. At the time, on 11 July 2014, she told Mr Zeman the reason for her not attending Dr White's appointment was because her blood test results made it risky for her to travel. She conceded that was the reason for her not attending. On 7 August 2014 at the Federal Circuit Court Ms Bashour stated that '[t]he direction that they're suggesting that I have failed to comply with is not attending a medical assessment to have an internal examination by a gynaecologist arranged by the ANZ...'.[798]
4. In evidence Ms Bashour stated, '[s]o my experience as a woman is when you see a gynaecologist or obstetrician the initial assessment always included an internal private examination.'[799] She indicated this was her experience at a time when she had seen another gynaecologist after she had her second child. The birth of her second child postdates July 2014. She did not give evidence about any enquiries she made at the time, for example whether she asked anyone or had 'googled' the question of what the IME might entail.[800]
5. Her own doctor, Dr Chew, gave evidence he did not diagnose pelvic instability in this way. The weight of evidence, from expert obstetricians Professor Wallace, Dr Chew and Dr White,[801] supports a finding that an internal examination was not required to diagnose or assess pelvic instability. Of the experts,[802] Dr O'Connor stated in his report, '...some gynaecologists would, as part of their assessment, choose to digitally palpate the subpubic angle as part of their search for tenderness in the pelvic region.'[803] In evidence he described an internal examination as the only way to detect tenderness underneath the subpubic arch, indicative of diastasis pubis, which is pelvic instability of the anterior part of the pelvic girdle and that '[t]here's no real other way of doing it.'[804]
6. Asked his response to Professor Wallace and Dr White's position, that they have never conducted an internal examination to diagnose pelvic instability, he stated, '...I understand what they're saying... it doesn't cut it as well as a vaginal examination if we're talking about diastasis pubis.'[805] In my understanding of his evidence, an internal examination is quite specific to diagnosing diastasis pubis. Professor O'Connor also expressed the view it was reasonable for Ms Bashour to assume she would have an internal examination, based on the fact Dr White is a gynaecologist.[806]
7. Professor O'Connor linked the practice of conducting an internal examination for pelvic instability to the specific condition of diastasis pubis. It was not clear whether he conducted an internal examination for every woman he treated who during pregnancy developed back or pelvic pain associated with pelvic instability in his practice, or only where he suspected diastasis pubis.
8. Dr Chew's evidence was that he did not assess pelvic instability by an internal examination, he stated, '[n]ormally, it would be pressing in on top of the pelvic - pressing down on the pubic hairline, that's where the pubic bone is. Pressing there would normally elicit tenderness. And then also, pressing the pelvic girdle from the side, because pressing on the pelvic girdles will also elicit pain.'[807] He denied an internal examination was required to identify diastasis pubis.[808]
9. The evidence in this case suggests Professor O'Connor's practice is an outlier in the Victorian context. I prefer the weight of the evidence namely the expert evidence of Professor Wallace and the evidence of Dr White as to their practice that they have never conducted internal examinations to diagnose pelvic instability and there is no need, [809] and that of Dr Chew who stated he does not diagnose pelvic instability by way of internal examination.
10. Ms Bashour had a subjective belief an internal examination would occur, as she expressed at the Federal Circuit Court hearing. On an objective assessment, the weight of the expert evidence is that her subjective belief was not reasonably based, and it was not expressed at the time by her when she stated she was not attending the IME. I am not of the view the direction to attend the IME constituted a detriment. Firstly, there is the weight of expert evidence that an internal examination would not be performed at the IME. Secondly, considered objectively, whether a direction to attend an IME constitutes a detriment needs to be determined on the basis of the need for or reasonableness of the request, not on the basis of what might occur at the IME. The direction to attend any IME may necessarily involve the possibility of personal intrusion to the person directed to attend. Otherwise, any direction to attend an IME could be a 'detriment' on the basis of the possibilities of the type of examinations that may be involved rather than the reasonableness of the direction itself.
11. Ms Bashour also made submissions that Mr Zeman's letter requested Dr White provide 'any other diagnosis.' The scope of the request for Dr White's determination is indicated by the description of Ms Bashour's duties and the indication that an opinion was sought about the effect of her pelvic instability, including whether Ms Bashour was able to physically attend the workplace. The evidence from the experts confirms pelvic instability covers a broad spectrum of symptoms and encompasses different degrees of pain and reduced mobility. In my view Mr Zeman's letter uses the standard language of a medicolegal request to a specialist for an opinion and should be read as such. The inclusion of those words did not amount to an invitation to Dr White, who was experienced in providing these types of medicolegal assessments, to conduct investigations at large. As previously noted, the diagnosis of pelvic instability was conceded.
12. Ms Bashour also placed significance on the description of her duties in Mr Zeman's letter to Dr White, suggesting in cross-examination to both Ms Edelman and Mr Zeman that they had 're-written' her position description, and that the key accountabilities or inherent requirements for the role '...had not otherwise been documented to Ms Bashour in relation to her role at any time during her period in the role in the bank...'.[810]
13. Mr Zeman's letter to Dr White states:

The key accountabilities of Katherine's role require her to participate in a significant number of meetings with stakeholders in ANZ Business Units which are all based at 833 Collins Street, Docklands. Katherine's ability to effectively support, advise, engage with and influence those Business Unit representatives is limited if she is not physically present at meetings with them. Her ability to participate in meetings at short notice and offer flexibility in the scheduling of those meetings is also significantly restricted if she is in the office less than five days per fortnight. In addition, her role requires her to participate in informal discussions and collaborate with other members of the Compliance team. Her ability to do so is significantly restricted if she is in the office less than five days per fortnight.[811]

1. In Ms Bashour's contract of employment dated 19 May 2009 when she commenced with ANZ, under '1. Position, Reporting Arrangements and Location' it states: 'Your position will be Manager, Regulatory Change reporting to Peter Harman, Senior Manager, Regulatory Change and Policy / Divisional MLRO and located at Level 24, 100 Queen Street, Melbourne.'[812]
2. The location of ANZ has changed to the Docklands. At all stages of her employment period at ANZ Ms Bashour has for some period each week, worked from home.
3. Ms Edelman sent Ms Bashour the results of the flexible work arrangement assessment dated 20 March 2014. In summary, this stated that, following a review of her role and Compliance business requirements, at least 50% of her contracted hours are required to be worked out of 83 Collins Street Docklands. The decision stated it was based on the key accountabilities of her position as the Manager of Regulatory Change and Policy. These required her to '...participate in a significant number of meetings with stakeholders in Australian Division Business Units...', noting that '[t]hose key holders are all based at 833 Collins Street Docklands.'[813] It also stated that '[y]our ability to support, advise, engage with and influence Australia Division Business Unit representatives is limited if you are not physically present at meetings with them...'.[814] Further, the decision noted that participation in and flexibility around scheduling meetings was affected if she was in the office less than 5 days a fortnight, as well as her ability to participate in informal discussions and collaborations with other members of the compliance team.[815]
4. On the basis of this evidence, I reject the suggestion that Ms Bashour was somehow not aware of what ANZ stated were the requirements of her role. I find these requirements were appropriately conveyed to Dr White.
5. Closing submissions by Ms Bashour referred to the evidence of psychiatrists Professor Dennerstein and Dr Phillips regarding the relationship between a pregnant woman and her treating obstetrician and the psychological intrusion of going to a third party of independent obstetrician for the purposes of the IME.[816] Against this, Professor Wallace pointed out that 64,000 women in Victoria each year in the public system '...would be seeing different care providers across the pregnancy, so they wouldn't have a designated obstetrician in the main.'[817]
6. In this case, I am satisfied the direction to attend the IME was reasonable, as ANZ did not have sufficient information to ascertain the effect of Ms Bashour's pelvic instability and whether she was medically unable to attend the ANZ workplace. On an objective view it was not a detriment but part of the employment process.
7. If the direction did subject Ms Bashour to a detriment, there is no evidence to find that the direction to attend the IME was because of Ms Bashour's complaints or actions described in section 104(1)(g).
8. In evidence Mr Zeman commented on the issues with Dr Chew's report dated 30 June 2014:

...I was after clear medical evidence of what Ms Bashour could and couldn't do. I mean, she was seeking to work from home, for example. That would be one example of restriction he could have stated. She must work from home. It's safe for her to work from home and it's not safe for her to come to the office. I would have loved that clarity at the time.[818]

1. Mr Zeman was aware of Ms Bashour's Fair Work Commission proceedings, and he was named in the Federal Court statement of claim and was a witness. When asked whether ANZ initially objected to Ms Bashour dealing directly with Dr Chew, Mr Zeman stated 'Not from memory. We were just interested in getting the medical information.'[819] He stated '...my role in seeking more medical evidence wasn't in relation to the complaint, in fact, it was in relation to now what happens and making sure that she's safe to work and she's working in the right location.'[820] Mr Zeman specifically denied pressing the IME so he could proceed to the disciplinary path or trigger disciplinary proceedings against Ms Bashour.[821]
2. In the area of employment it can be challenging to extricate conduct said to be victimisation from conduct that is part of ordinary employment procedures. In a file note listing Mr Zeman's priorities in the Tribunal book, there are a number of references to files he is working on where he is seeking consent to contact medical practitioners or seeking IMEs in other cases, suggesting this conduct was not unique to Ms Bashour.[822]
3. Ms Edelman and Ms Zeman were consistent and credible in their evidence. Whilst there is some contemporaneity between events in the Federal Court proceedings and the direction to attend the IME, I do not find evidence of a causal connection or evidence to draw inferences to discount the direct evidence given by these witnesses. There is insufficient evidence to support Ms Bashour's actions under s 104(1)(g) being a substantial reason. Whilst Ms Bashour has sought to draw on inferences, the direct evidence of Ms Edelman and Mr Zeman in their oral evidence and the emails and correspondence carries greater probative weight suggesting that the real reason for the direction to attend the IME was to obtain information as to whether Ms Bashour was able to attend the workplace given her diagnosis of pelvic instability, and what adjustments could be made for her.
4. After consideration of the evidence I did not find the direction to attend the IME subjected Ms Bashour to a detriment under section 104. If it did, I am not satisfied the substantial reason for the direction was because of Ms Bashour's actions under section 104(1)(g). With respect to paragraph [154(d)], I do not find victimisation under section 103 made out on the balance of probabilities.

[154(e)] corresponding with the Applicant while she was on sick leave;

1. There are no submissions by Ms Bashour relevant to this claim under [154(e)].
2. ANZ submits [154(e)] did occur, but did not entail detriment to Ms Bashour.
3. Ms Bashour has not itemised the correspondence from ANZ on which she relies.
4. From the dates she was on sick leave, Ms Bashour received the following correspondence by way of emails from ANZ:
   • On 2 January 2014, Mr Zeman emailed Ms Bashour to provide her with an outcome of her complaint regarding the terms of her contract and her flexible working arrangements.
   • On 6 January 2014, Mr Zeman responds by way of acknowledgement to Ms Bashour's email of the same date expressing her dissatisfaction with his decision.
   • On 13 January 2014 Ms Edelman responds to Ms Bashour's email advising she is still unwell and undergoing medical investigations, stating she hopes everything is ok.
   • On 19 January 2014, in response to an email from Ms Bashour indicating she would return on 20 January 2014, Ms Edelman emails in relation to work she wanted completed upon Ms Bashour's return.
   • On 28 February 2014, Ms Edelman sent an email to Ms Bashour noting it was her last day of sick leave and requested a fitness for work certificate;
   • On 8 July 2014, Mr Zeman wrote to Ms Bashour in response to the email she had sent to Ms Edelman indicating that she was distressed about the direction from ANZ to attend an IME, indicating that he was available to talk about her concerns.
   • On 10 July 2014, Mr Zeman sent Ms Bashour a letter indicating that he remained available to discuss her concerns and indicating that in the event she was still on sick leave the following week ANZ's direction to attend the IME remained on foot.
   • On 14 July 2014, Mr Zeman responded to Ms Bashour's email regarding the impact of her blood test results on her ability to attend the IME, advising that on the basis of the information provided that direction to attend the IME remains lawful and reasonable.
   • On 16 July 2014, Ms Thomas emailed Ms Bashour advising her of her findings in response to the complaint letter of 14 July 2014.
   • On 16 July 2014, Mr Zeman sent the email and letter advising of the commencement of disciplinary proceedings against Ms Bashour.
   • On 21 July 2014, in response to the report of Dr Crimmins provided by Ms Bashour's father, Mr Zeman emailed Ms Bashour to advise of his receipt of it and that ANZ proposed to treat it as her response to the disciplinary letter dated 16 July 2014, also inviting her to provide further information by 25 July 2014 should she wish to do so.
   • On 24 July 2014, in response to an email from Ms Bashour indicating that she is unfit to respond to the disciplinary letter of 16 July 2014, supported by a letter from Dr Crimmins dated 23 July 2014 stating that correspondence should cease, Mr Zeman emailed advising that her response would not be required by 25 July 2014, but that the opportunity could not be held open indefinitely.
5. In Cederman v Oleochem, DP Beaumont had to determine at the outset the issue of whether Ms Cederman had been dismissed for the purposes of section 386 of the Fair Work Act in order for her to apply under section 365 of that Act for the Fair Work Commission to deal with the dismissal dispute.
6. Deputy President Beaumont considered a number of emails sent to Ms Cederman when she was on maternity leave by her employer regarding her return-to-work date. DP Beaumont noted the respondent's conduct within the applicant's postpartum period 'warrants attention', and that the requirement put by the respondent for her to give eight weeks' notice of her return-to-work date was not referrable to any legislative provision or company policy. DP Beaumont found the insistence on the provision of the return-to-work date was unreasonable, as it '...bordered on badgering and was unacceptable - notwithstanding the dispute over when the Applicant's parental leave concluded. The Applicant was on parental leave and such leave should have been respected.'[823]
7. DP Beaumont stated, when commenting on critical conduct:

As noted, it must first be acknowledged that on an objective analysis of the conduct of which the Applicant complains, some issues do not bear the character she ascribes to them. This includes the Respondent contacting the Applicant whilst on personal leave or whilst she was on her rostered time off during her pregnancy to arrange an independent medical assessment, which was not, in my view, unreasonable in all the circumstances.[824]

1. DP Beaumont found the applicant had been forced to resign because of the respondent's cumulative conduct and found this conduct of subjecting the applicant '...to persistent enquiry (once in January 2023 and thereafter during the month of April 2023) as to her return-to-work date notwithstanding her repeated response to such enquiry...'[825] to be part of '...the cumulative conduct of the Respondent over the period of the Applicant's pregnancy and her parental leave, in addition to the circumstances in which the Applicant submitted her resignation, that have led to this conclusion.'[826]
2. In this case, with respect to the 'correspondence' referred to in [154(e)], in her complaints and her statement Ms Bashour refers to it as 'unrelenting', being driven to the point of distraction,[827] and being 'very distressed' and under 'constant pressure'.[828]
3. A substantial portion of the correspondence received by Ms Bashour during sick leave were responses to emails she had sent regarding complaints, or regarding the dates of her sick leave and return to work, many of which did not require a response.
4. Ms Bashour does not refer to any legislative basis in support of [154(e)] that an employee should not be contacted by an employer when they are on sick leave. The only case referred to in the list of authorities where it is given significant consideration is Cederman v Oleochem. There is no evidence in this case ANZ was badgering Ms Bashour or that it was insistent or unreasonable, having regard to the contents of the correspondence sent and received and the information it was seeking.
5. Whilst it could meet the definition of being a detriment if the request were unreasonable, insistent or badgering, on the facts of this case I am not of the view the correspondence whilst on sick leave when considered objectively constituted a detriment to Ms Bashour. Further, as I have considered with respect to the repeated requests for medical evidence, the correspondence was predominantly directly related to obtaining information about Ms Bashour's health status and was not for a vexatious or improper purpose. Further, there is insufficient evidence to support a finding ANZ sent the correspondence 'because' she had made complaints to senior management or because of her Fair Work Commission or Federal Court proceedings, or that the complaints and the proceedings were a substantial reason for the correspondence.
6. I did not find that ANZ corresponding with Ms Bashour whilst on sick leave subjected Ms Bashour to a detriment under section 104. If it did, I am not satisfied the substantial reason for the direction was because of Ms Bashour's actions under section 104(1)(g). With respect to paragraph [154(e)], I do not find victimisation under section 103 made out on the balance of probabilities.

[154(f)] the disciplinary process as set out at paragraphs 96, 98 and 102

On 16 July 2014, within 15 minutes of Ms Thomas' determination, Mr Zeman sent a letter to the Applicant by email which stated that the failure to attend the medical assessment was a serious breach of her employment obligations and a disciplinary process would consequently be commenced, with termination of employment a potential outcome (Disciplinary Letter).

Particulars

Letter from Mr Zeman to the Applicant dated 16 July 2014.

On 21 July 2014, Mr Zeman confirmed that the letter from Dr Crimmins would be considered as part of the disciplinary process commenced against the Applicant and that the Applicant would be contacted regarding the outcome of the disciplinary process shortly.

Particulars

Email from Mr Zeman to the Applicant dated 21 July 2014.

On 4 August 2014, the Applicant received an email from Mr Zeman noting that if she was well enough to write to Maddocks, she was well enough to submit a response to the disciplinary charges. Mr Zeman provided the Applicant with three days to respond.

Particulars

Email from Mr Zeman to the Applicant dated 4 August 2014.

1. Ms Bashour did not make specific submissions about paragraph [154(f)].
2. ANZ submitted that paragraph [154(f)] occurred but did not entail a detriment to Ms Bashour.
3. Detriment has been defined broadly to include 'loss, damage or injury'.[829] In Hautlieu Pty Ltd T/AS Russell Pathology v McIntosh[830] injury was defined as '...harm of any kind done or sustained or a wrong or injustice suffered'[831] and was not limited to physical but also included psychological harm.[832]
4. In the Federal Court victimisation case of Penhall-Jones v New South Wales, an employer's letter threatening termination was considered to be part of a fair employment process, rather than a threat of detriment for the purposes of victimisation. Buchanan J, hearing the appeal from the Federal Magistrate, found it hard to see the letter from her employer as a 'threat', stating:

A failure to indicate the seriousness with which the allegations were viewed would require explanation if disciplinary action followed. A lack of candor and a failure to provide an unvarnished statement of the implications for Ms Penhall-Jones' employment would not be justified simply by a desire to avoid what might later be construed as threatening behavior. All warnings, which are often an integral and necessary part of fair treatment and proper notice, contain an element of explicit or implicit menace by their very nature.[833]

1. In considering detriment under the section 15(d) of the Equal Opportunity Act 1995 (Vic) in Drummond v Telstra Corporation Limited[834] Harbison J stated:

...detriment might be established in the form of a 'black mark' on his employment record as a result of the performance improvement plan process, or the experience of humiliation or unpleasantness during the performance improvement plan interview.

...I take the view that for a person in the position of Mr Drummond to be challenged as to his capacity to perform the work required of him, or face the experience of a confronting performance interview, is capable of being characterised as a serious and substantial detriment.[835]

1. In Tropoulos, the reporting of Mr Tropoulos by his employer to the Queensland Law Society regarding his status as a 'fit and proper' person to hold a practising certificate was viewed as a potential detriment.
2. The disciplinary process referred to in paragraphs [96] and [102] may have constituted a detriment or it may have been 'fair warning' and 'an integral part of proper notice.' Viewed objectively Ms Bashour was on notice from Mr Zeman's earlier email dated 4 July 2014 that failure to attend the IME may have disciplinary consequences. In my view his subsequent correspondence was in response to Ms Bashour's failure to attend the IME. I am not satisfied there is evidence that the commencement of the disciplinary process was because of Ms Bashour's complaints or the Fair Work Commission or Federal Court proceedings. In evidence Mr Zeman stated he was not aware of offers made to Ms Bashour and described being '...sequestered from the proceedings and also from those sort of discussions.'[836]
3. With respect to paragraph [96], Mr Zeman's letter of 16 July 2014 was as a result of Ms Bashour not attending the IME, an event which had already been foreshadowed in his earlier letter dated 4 July 2014. It was Mr Zeman's evidence in cross-examination this was a 'standard paragraph' whenever the independent medical assessment direction was drafted.[837] In cross-examination when asked why Ms Bashour was pursued for disciplinary action for not attending the 15 July 2014 medical examination, Mr Zeman stated:

Well, there was a reasonable direction for her to attend the earlier appointment, the first appointment, the one she was aware of. She refused to attend it on the basis that she said she wasn't fit enough. She didn't provide any medical evidence to that - to evidence that claim, and she, therefore, refused to comply with a lawful direction. That's a disciplinary matter.[838]

1. The two emails, Mr Zeman's evidence and the history of correspondence seeking medical information supports the position that the disciplinary proceedings were instituted because Ms Bashour did not attend the IME. Ms Turner was asked to respond to Ms Bashour's letter of complaint dated 14 July 2014. The fact Mr Zeman's letter was sent '15 minutes after Ms Thomas' determination', while contemporaneous, does not causally link it to Ms Bashour's complaint.
2. With respect to paragraph [102], Mr Zeman's email dated 4 August 2014 requested Ms Bashour respond to the 16 July 2014 disciplinary letter within three days. It points out she is corresponding with ANZ lawyers regarding her Federal Court proceedings. Mr Zeman agreed in cross-examination he reached his conclusion about Ms Bashour's fitness to respond to the disciplinary letter 'utilising logic', without medical evidence.[839] Mr Zeman clarified he was putting to Ms Bashour the contradictory evidence that she was able to travel to her own doctor's appointments and to the Federal Court on three occasions in May and June 2014 but stated she could not travel to the workplace. He stated, '...we were legitimately confused about the difference between what she was saying and what we were sent.'[840]
3. Mr Zeman makes the point that if Ms Bashour can respond to litigation steps in the Federal Court proceedings, she should be able to respond to the disciplinary process. It is used as an example to demonstrate her capacity or ability which is at odds with Dr Crimmins' letter that she was '...not capable of any work and hence correspondence with her at home should cease in order for her to recuperate properly and complete her pregnancy healthily.'[841] Neither responding to the Federal Court proceedings or the disciplinary proceedings were technically 'work', and Ms Bashour states she could respond to one, but not the other. I accept Mr Zeman's evidence as reasonable and credible and find there is insufficient evidence to support that Ms Bashour's complaints or her Fair Work Commission or Federal Court actions were a substantial reason for the disciplinary conduct.
4. With respect to paragraph [98], I am not of the view this correspondence would constitute subjecting Ms Bashour to a detriment. Mr Zeman's email dated 21 July 2014 stated Dr Crimmins' letter would be considered as part of the disciplinary process. I am unclear why it is claimed that this is would constitute a proposed detriment to Ms Bashour. Dr Crimmins' letter dated 17 July 2014 contains the medical opinion confirming the information Ms Bashour referred to in her email to Mr Zeman as to why she could not attend the IME with Dr White. For Mr Zeman to consider this would appear to be in Ms Bashour's favour, as it provides the medical advice requested as to why she was unable to attend the IME on 14 July 2014.
5. I do not find on the balance of probabilities the disciplinary process subjected Ms Bahour to a detriment however if it did, it was not taken because she had made complaints or taken legal proceedings but because she had not attended the IME. With respect to paragraph [154(f)], I am not satisfied that victimisation under section 103 is established.

[154](g) requiring the Applicant to respond to and participate in the disciplinary process while on sick leave and in contravention of her medical advice.

1. Ms Bashour has not made submissions specifically about [154(g)].
2. ANZ submits the events alleged in [154(g)] did not occur.[842] ANZ further denies a causal connection between the alleged conduct and Ms Bashour's complaints or the Fair Work Commission/Federal Court proceedings.
3. The evidence, already referred to above at [1133] is that when Mr Zeman received Dr Crimmins's letter dated 23 July 2014, he emailed Ms Bashour that she was not required to respond by 12pm on 25 July, the date stipulated in his letter. However, when Mr Zeman became aware of her correspondence with ANZ's solicitors regarding her Federal Court proceedings, on 4 August 2014 he wrote to Ms Bashour requiring her to respond to his letter outlining the disciplinary process.
4. As referred to immediately above, responding to and participating in the disciplinary process may constitute a detriment.
5. Factually, Ms Bashour did respond to the 'disciplinary process' by filing an urgent application at the Federal Circuit Court on 5 August 2014. The claim refers to ANZ requiring a response in contravention of her medical advice.
6. If the requirement to respond to the disciplinary process in contravention of her medical advice was a detriment, in my view there is insufficient evidence that the requirement to respond was 'because' Ms Bashour made complaints or instituted her Fair Work Commission or Federal Court proceedings, or that they constituted a substantial reason for doing so. Whilst there is contemporaneity of events, the requirements for a response (in the initial letter dated 16 July 2014 and then again by email on 4 August 2014) were because she had not attended the IME with Dr White and Mr Zeman was advancing the disciplinary process and inviting Ms Bashour to provide any information she sought for ANZ to consider in this process.
7. The emails to Ms Bashour from Mr Zeman outline the background and reason for ANZ's requests. This is confirmed by Mr Zeman's evidence. Mr Zeman was not cross-examined about the reasons he gave in his statement for the requests.[843]
8. If the conduct did constitute a detriment under section 104, I am not satisfied the substantial reason was because of Ms Bashour's actions under section 104(1). Contravention of section 103 is not made out on the balance of probabilities.

[154](h), (k), (l) and (m) ('Litigation Actions')

1. In addition to rejecting ANZ's submission these claims are impermissible or should be excluded, Ms Bashour submitted an inference can be drawn that the conduct by the ANZ (during the litigation whilst she was still employed by ANZ) was because she had alleged the respondents had engaged in conduct which could contravene Parts 4 and 7 of the EO Act.
2. Ms Bashour further submitted the victimisation extended past the termination of her employment through ANZ's subsequent conduct in legal proceedings, such as the improper and unlawful strike out of the VCAT proceedings and referral to the Federal Court, and that ANZ attempted to crush her against an unfair Federal Court timetable.[844]
3. Ms Bashour rejected ANZ's submissions the litigation steps were '...orthodox steps appropriate to be taken by any party to litigation.'[845] Ms Bashour cited the VCAT strike out application, the Federal Court 'derailment' and the Federal Circuit Court proceeding being transferred to the Federal Court as in no way orthodox steps.[846]
4. The submissions detail the Federal Circuit Court hearing on 7 August 2014, and Ms Bashour's objection to the matter being transferred to the Federal Court, 'on the basis of a misrepresentation' by Mr Tamvakologos who advocated for the transfer, stating to the court, '...there is nothing which triggers, if I could put it that way, an injunction application to this court which was not known to the applicant sometime ago which, of course, could be agitated before Tracey J in the ordinary way.'[847]
5. Ms Bashour objected to the transfer as she did not want to delay the substantive 2014 Federal Court proceedings because the anticipated hearing dates in November would be lost.
6. On 26 August 2014, the Federal Court listed a directions hearing for 5 September 2014 in relation to the transferred Federal Circuit Court application. The parties could not come to an agreement to adjourn the directions hearing so it was not adjourned. Ms Bashour did not attend as she had just given birth via a caesarean section. Before Tracey J, Ms Bashour submits ANZ took advantage of her absence and advocated for the cases to be heard together to postpone the proceedings indefinitely and have their obligation to file material vacated. Ms Bashour submits, otherwise, the Federal Court proceeding would not have been joined and would have been heard in November 2014 instead of deferred indefinitely.[848]
7. Ms Bashour submits she could not return to work in such a dangerous environment.
8. On 1 October 2014, Ms Bashour resigned from her employment.
9. On 1 October 2014, Ms Bashour discontinued her Federal Circuit Court application, which had been transferred to the Federal Court. Ms Bashour submits that as the proceedings related to the terms and conditions of her employment, once her employment ended, enforcement of the contractual variation was of no utility, however penalty, compensation and redress regarding loss of employment and damage to her reputation remained 'relevant and of value.'[849] On 10 October 2014, the substantial Federal Court proceeding was listed for hearing on 27 April 2015. Ms Bashour submits she could not amend her Federal Court claim to include discrimination without first lodging a complaint with the Australian Human Rights Commission and exhausting the Commission's procedures.[850]
10. To reflect intervening events, on 20 October 2014 Ms Bashour made a claim at the Tribunal under the EO Act. The claim reflected events around her second pregnancy and her constructive dismissal from employment by ANZ.
11. On 9 December 2014, ANZ applied to strike out the VCAT proceedings under section 77 of the VCAT Act and, on 20 March 2015, the Tribunal struck out the application and referred the matter to the Federal Court to be heard with the other proceeding.
12. Ms Bashour notes that, on appeal, the Supreme Court held the Tribunal had been led into error by ANZ's submissions that under section 77(3) of the VCAT Act State jurisdiction could be conferred on a Federal court under section 32 of the Federal Court of Australia Act 1976 (Cth), which was not legally possible.
13. Mukhtar AJ and McDonald J expressed the view ANZ's application lacked a proper basis in law and should not have been made.

1. ANZ submits paragraphs [154] (h), (i), (k), (l), (m) and (n) of the FAPOC are incapable of constituting a detriment because:

(a) these events (other than item (h)) occurred outside the workplace and outside the employment relationship...;

(b) they are in the nature of orthodox steps appropriate to be taken by any party to litigation...; and

(c) to rely on these matters in the manner in which the Applicant seeks to do constitutes a de facto collateral attack on decisions made and steps taken in litigation...[851]

1. ANZ further submits, the authorities relied on by Ms Bashour are not germane as they concern claims for aggravated damages or proof of malice in defamation proceedings. None are directed at the question of what conduct by a respondent is capable of being characterised as constituting a detriment within section 103 of the EO Act.[852]
2. With respect to the alleged litigation actions, ANZ submits each of the actions are orthodox steps appropriate to be taken by any party to litigation and Ms Bashour has not referenced any authorities as to how the alleged litigation actions can be characterised as victimisation.[853]
3. ANZ submitted the allegations in [154(l)] and [154(m)] did not occur. ANZ submit there is no evidence in support of ANZ 'derailing' proceedings in the Federal Court or attempting to crush Ms Bashour against an unreasonable timetable of proceedings.[854]
4. ANZ submits [154(h)] and [154(k)] did occur, but the strike out application (successfully appealed by Ms Bashour) ought not be the subject of collateral challenge by dint of being characterised as 'victimisation', and, the transfer of the Federal Circuit Court proceedings to the Federal Court was a regularly made order of the court that did not cause detriment to Ms Bashour.[855]
5. With respect to the alleged 'Litigation Actions', ANZ submits there is no evidence of the relevant causal connection and/or mental state.[856]
6. ANZ also submits there is no evidence the alleged 'Litigation Actions' were because Ms Bashour had made complaints to the Fair Work Commission, instituted the Federal Court proceedings or complained to senior management.
7. As with the alleged employment actions, ANZ submits Ms Babani and Ms Evans were under no obligation to intervene to stop or remedy the strike out application or the application to transfer the Federal Circuit Court proceedings to the Federal Court.[857]

[154(h)] Transfer of Federal Circuit Court proceedings to the Federal Court

1. The factual premise of [154(h)], in paragraph [106] of the FAPOC, states:

On 7 August 2014, without notice to the Applicant, before any statement of claim or evidence had been filed, without any formal application or supporting evidence and pursuant to the incorrect provision, ANZ successfully managed to have the matter referred to the Federal Court of Australia on the purported basis that a same or similar matter was on foot in the Federal Court of Australia...[858]

1. This relates to Ms Bashour's claim that the Federal Circuit Court proceeding was transferred to the Federal Court.
2. The 7 August 2014 listing at the Federal Circuit Court was a hearing of Ms Bashour's urgent application for an injunction. The premise for the detriment is firstly, that Ms Bashour was taken by surprise by ANZ in that actions were taken 'without notice' and 'without formal application.' Secondly, that ANZ relied on 'an incorrect provision.' Thirdly, the implication is ANZ is alleged to have purported there was the 'same or similar matter on foot in the Federal Court' and successfully managed to have the matter transferred.
3. I have read the transcript of the hearing on 7 August 2014. In my view, Ms Bashour's claim not to have notice of ANZ's position is consistent with her bringing the urgent application for an injunction. Not being 'on notice' of ANZ's intended response to this urgent application is very much the usual position in urgent applications of this kind. The presiding Judge noted Ms Bashour did not file any evidence with the court in support of her application.[859]
4. Secondly, she alleges an incorrect provision was relied on. This provision is not identified in the FAPOC. On reading the transcript, the only time a provision is referred to is by Judge Riley, when her Honour identifies section 39 of the Federal Circuit Court Act 1976 (Cth) as empowering that court to transfer the matter to the Federal Court.[860]
5. Thirdly, the suggestion from the phrase 'purported basis' is that there was not a similar matter on foot at the Federal Court. Judge Riley explained to Ms Bashour why, in her view, there was similarity between the proceedings and that the matter should be transferred to the Federal Court.[861]
6. I am not of the view the factual basis of paragraph [106] as pleaded is accurate or that it could constitute a 'detriment' under section 104 of the EO Act.

[154(k)] the Strike Out application and Strike Out Order

1. Ms Bashour submitted this involved the improper and unlawful strike out of the VCAT proceedings and referral to the Federal Court.
2. On 9 December 2014, ANZ applied to strike out the VCAT proceedings under section 77 of the VCAT Act. A contested hearing between Ms Bashour and ANZ on this application was heard by Vice President Judge Harbison on 24 February 2015.
3. On 20 March 2015, the Tribunal struck out the application and referred the matter to the Federal Court to be heard with the other proceeding.[862]
4. Given the broad definition of detriment,[863] Ms Bashour submits conduct in litigation which occurred during her employment and after 1 October 2014 can constitute a detriment under section 104. Ms Bashour's claim on these grounds seeks to extend the notion of 'detriment' to include conduct which has not previously been considered in the case law. In her submissions Ms Bashour stated, '[l]itigants are not at liberty to defend proceedings brought against them without regard to the exacerbation of the hurt and injury that their conduct may cause to applicants...'.[864] ANZ submits detriment does not extend to events occurring outside the workplace and employment relationship, and that the claim constitutes a 'de facto collateral attack' on decisions made and steps taken in litigation. ANZ did not cite any cases in support of its submission that detriment does not extend to events occurring outside the workplace and employment relationship.
5. In Schwerin v City of Sale & Anor[865] the appellant claimed she had been victimised under section 18(1) of the Equal Opportunity Act 1984 (Vic) (the then victimisation provision) by being subjected to defamatory statements, verbal abuse, threats and other conduct by councillors and employees. The Supreme Court upheld the Victorian Equal Opportunity Board's decision that it had no jurisdiction as section 18(1) of the Act rendered unlawful acts of discrimination 'in any circumstances relevant for the purposes of a provision of this Act.' This meant the appellant needed to establish discrimination occurred in the areas described by sections 21 to 33 (Discrimination in Employment and Discrimination in other Fields) of the Equal Opportunity Act in force at the time.
6. Mandie J considered the phrase 'in any circumstances relevant for the purposes of a provision of this Act' which had been considered by the High Court in Waters. The High Court there stated:

The purpose of the Act is to eliminate discrimination on the ground of status or by reason of personal life in those areas in which the Act operates...Thus, subject to the exceptions set out in the Act, the effect of s. 17(1)[866] is to declare that status and personal life are not to be taken into consideration in those areas in which the Act operates.[867]

1. The phrase was held to refer to those areas of discrimination delineated by those provisions in the Act which make various acts of discrimination unlawful. Mandie J went on to state circumstances which were relevant for the purposes of a provision of the Act are those made relevant by sections 21 to 33 of the Act, being '...the areas in which the Act operates - offers of employment, terms of employment, supply of and terms of supply of goods and services, and so on'.[868]
2. The victimisation provisions in sections 103 and 104 of the current EO Act do not contain the wording or equivalent phrase 'in any circumstances relevant for the purposes of a provision of this Act' as in the Equal Opportunity Act 1984 (Vic). This, together with the inclusive definition of 'detriment' in section 3 and the use of the word 'any' detriment suggests detriment is not constrained to events occurring in delineated areas within the Act where discrimination is prohibited, such as the workplace and employment relationship, as submitted by ANZ.
3. In Cederman v Oleochem, Deputy President Beaumont stated, in consideration of the Applicant's dismissal claim:

The Applicant was further aggrieved by the Respondent's response to her application in the AHRC, which she received on 20 April 2022. Whilst the Applicant states that the Respondent's response left her completely shattered and further altered her relationship with the Respondent such that her trust was diminished, it is to be appreciated that it was the Applicant who commenced this litigation. In respect of the litigious approach that the Respondent took in response to the Applicant's application in the AHRC, I consider nothing turns on such conduct. Once a litigious route has been adopted, the parties are free to pursue their own strategic direction as permitted by the law.[869]

1. In the Supreme Court proceedings determining the application for review of the 'strike out' and costs (after Ms Bashour's application for an extension of time had been granted), McDonald J rejected Ms Bashour's application for indemnity costs, granting costs on a standard basis for the extension of time application and the substantive proceedings. His Honour stated:

I reject the submission advanced on behalf of Ms Bashour that the conduct of the defendants in resisting the extension of time application was unreasonable. Further, there is no foundation for the submission that 'a reasonable inference of wilfully improper conduct is available from the defendants' pursuit of their application to VCAT in disregard of clearly established law'. There is a significant difference between a party making an erroneous submission and making a wilfully misleading submission.[870]

1. In the strike out case, Ms Bashour was successful on her appeal to the Supreme Court where orders remitted the case back to the Tribunal and costs were awarded in her favour. However, McDonald J specifically rejected the submission by Ms Bashour that ANZ's conduct was unreasonable or that the submission under section 77(3) had been made to wilfully mislead the Tribunal.
2. Litigation can be a distressing process, and witnesses can have their feelings hurt by conduct such as assertions put to them in cross-examination.[871] In a case referred to by Ms Bashour involving an application for aggravated damages based on the defendant's persistence in running the defence of justification, Nicholas AJ stated:

Authority establishes that a defendant's conduct in defending a claim and the conduct of its case at trial cannot be held to aggravate the harm unless it is shown that, in the circumstances, it was not bona fide, or was unjustifiable or improper...[872]

1. Given the broad definition of detriment which encompasses situations where the complainant has been placed under a disadvantage as a matter of substance as distinct from a trivial matter,[873] it is conceivable the legal proceedings that fall outside the workplace and employment could potentially constitute a detriment in circumstances where legal or litigious conduct was not bona fide, unjustifiable or improper. However, there are public policy considerations as to why questionable litigation conduct should be sanctioned through the court ordering costs and damages, or through the relevant disciplinary processes, rather than giving rise to a separate cause of action.
2. Regardless, McDonald J's judgment in the strike out application confirms the absence of those circumstances here.
3. Finally, there is no causal evidence that this strategy was 'because' Ms Bashour had taken actions under section 104(1) of the EO Act or that it formed a substantial reason for the conduct. There is no evidence to suggest ANZ instructed their solicitors to take any of the litigation actions because Ms Bashour had made complaints or had taken legal action against them. ANZ was a party responding to litigation Ms Bashour had commenced in the adversarial context of Australia's legal system. I am not satisfied victimisation is proven on the balance of probabilities under section 103.

[154(l)] the derailment of the Federal Court Proceeding

1. On 26 August 2014, the Federal Court listed a directions hearing for 5 September 2014 in relation to the transferred Federal Circuit Court application. The parties could not come to an agreement to adjourn the directions hearing. Ms Bashour did not attend the 5 September 2014 directions hearing as she had just given birth via a caesarean section.
2. Before Tracey J, Ms Bashour submits, ANZ took advantage of her absence and advocated for the two proceedings to be heard together to postpone them indefinitely and have their obligation to file material vacated. Otherwise, she submits, the Federal Court proceeding would not have been joined and would have been heard in November 2014 instead of deferred indefinitely.
3. The same considerations apply as previously. The transfer of the Federal Circuit Court application to the Federal Court was done pursuant to an order of Judge Riley following the hearing on 7 August 2014.
4. The documents in these proceedings also do not show a hearing date was ever formally listed in November 2014.[874] It appears Justice Tracey had indicated to the parties at an earlier directions hearing the court would try to list the matter in November 2014,[875] but as at 1 September 2014 (4 days prior to the 5 September directions hearing) Justice Tracey's Associate had emailed the parties that His Honour was not available to hear the newly transferred proceeding in November 2014 due to Full Court commitments and was considering dates from February 2015 onwards.[876]
5. The decision as to whether matters should be joined was one for the court to make, following ANZ's application. As Ms Bashour was absent from the 5 September 2014 directions hearing but had previously indicated she opposed the proceedings being joined, Justice Tracey declined to make an order joining the proceedings until His Honour had heard further from Ms Bashour.[877]
6. A decision about whether the proceedings should be joined was never made by the court, as Ms Bashour filed a notice of discontinuance in respect of the transferred Federal Circuit Court proceedings on 1 October 2014, two days before the matters were scheduled for directions hearing on 3 October 2024.
7. The decision to vacate the existing orders and adjourn both proceedings for a directions hearing on 3 October 2014 (at which time Justice Tracey was to consider whether they should be joined) was a decision of the Court. The explanation for these orders, as detailed by His Honour's Associate in an email of 5 September 2014, was that the existing timetable would have required Ms Bashour to take various steps within six weeks, which was inconsistent with a deposition filed by Ms Bashour advising she required 'six weeks full rest to recover from the [caesarean] procedure and time to care for her new born child'.[878]
8. In this email Justice Tracey's Associate also reiterated that the court was '...not in a position to list either proceeding for trial until February. The vacating of the orders this morning will have no bearing on the trial date.'[879] This email is contrary to the assertion of paragraph [119] of the FAPOC that the vacating of the existing orders '...led to the adjournment of the hearing dates for the Federal Court Proceeding from November 2014 to February 2015 and then to late April 2015.'
9. I am not of the view the transfer of the Federal Circuit Court proceedings to the Federal Court, the vacating of the timetable and ANZ's application to have the proceedings joined, unpredictable as court processes can be, can be profiled as a 'detriment' on the basis that, but for these actions, Ms Bashour's case would have been listed and heard in the Federal Court in November 2014. In any event, the documents before me indicate that the court would not have heard the proceeding in November 2014, regardless of any of the actions ANZ took.
10. The factual premise of [154(l)], namely the derailment of the Federal Court proceeding, is not made out.
11. There is no evidence the actions of ANZ that purportedly led to the alleged 'derailment of the proceeding' were not bona fide or were unjustifiable, other than them being actions and outcomes Ms Bashour opposed. I am not satisfied victimisation is proven on the balance of probabilities under section 103,

1. This part of the claim relates to ANZ attempting 'to crush the Applicant against an unmanageable and unreasonable court timetable' in the following way:

Following the handing down of the Strike Out Order, on 24 March 2015, the Respondents proposed a timetable which provided the Applicant with only one week to update her pleadings to incorporate the VCAT Proceeding, and which sought to maintain the trial dates commencing 27 April 2015, meaning that the Applicant would have had less than one month to complete all evidentiary and procedural steps in respect of the VCAT Proceeding and to amalgamate the VCAT Proceeding and the Federal Court Proceeding.[880]

1. A short background to ANZ coming to propose this timetable is as follows.
2. On 17 March 2015, Ms Bashour filed for leave to withdraw the Federal Court Proceedings.[881]At that time the proceeding was listed for final hearing beginning on 27 April 2015.
3. On 20 March 2015, the Tribunal made the orders striking out the VCAT proceeding and referring the subject matter to the Federal Court of Australia.
4. On 24 March 2015, ANZ proposed a timetable to Ms Bashour for amending and filing new documents at the Federal Court proceeding to incorporate the substance of the struck out VCAT proceedings. This proposed timetable envisioned this being done while preserving the previously listed 27 April 2015 hearing dates.[882]
5. On 1 April 2015, Mr Harmer went on the record to act for Ms Bashour.
6. On 2 April 2015 a directions hearing was held at the Federal Court before Justice Tracey. Following the directions hearing and submissions by both parties on the various issues the proceedings faced, Justice Tracey made orders dismissing Ms Bashour's March 2015 application for leave to discontinue the proceedings and adjourned the 27 April 2015 hearing dates.[883] Accordingly, the litigation timetable as proposed by ANZ on 24 March 2015 did not come into effect.
7. A litigation timetable is usually negotiated between the parties and is ultimately a decision for the presiding judicial officer. Here, the judicial officer ultimately ordered a different timetable to that which ANZ had proposed to Ms Bashour. I understand this is pleaded as threatening to subject Ms Bashour to a detriment. Objectively, I am not of the view proposing a timetable constitutes a threatened detriment as it would mean that any counter step taken by a party in the litigation process could amount to a detriment.
8. There is also no evidence to suggest the proposed litigation timetable is 'because' Ms Bashour took action under section 104(1)(g), or that it was a substantial reason, as opposed to ANZ acting as a party is entitled in the litigation process. I am not satisfied on the balance of probabilities for the above reasons the claim of victimisation under section 103 is made out.

[154(i)] the Media Release and the subsequent related media statements and social media posts by ANZ as set out at paragraphs 107 to 114

1. Paragraphs [107]-[114] of the FAPOC are as follows:
   1. On 8 August 2014, The Age newspaper published an article regarding the hearing on 7 August 2014 (The Age Article).

1. As a result, ANZ issued a media release on 8 August 2014 which contained misleading information regarding the Applicant's dispute against ANZ and which was detrimental to the Applicant's reputation (Media Release).

Particulars

The Media Release implied that the Applicant was lying and/or misleading as to the nature of the independent medical assessment and in respect to the reasons for commencing the Federal Circuit Court Proceeding.

1. ANZ contacted The Age and had The Age update its article to include statements from its media release.
2. ANZ issued an internal electronic statement to staff regarding the Applicant and the Applicant's dispute against ANZ which was detrimental to the Applicant's reputation.
3. At this time, the First Respondent initiated a public campaign against the Applicant.
4. ANZ commented on a significant number of individual posts on social media in respect of the matter, further damaging the Applicant's reputation.

Particulars

Twitter and Facebook comments by ANZ between 8 August 2014 and on or about 10 August 2014.

1. ANZ continued to speak to the media about the Applicant's claim and continued to assert it had a proper basis for the Direction to Attend the Medical Examination, further damaging the Applicant's reputation.

• (A) The Daily Life article dated 10 August 2014;.
• (B) Email from Stephen Ries to Sarah Crawford dated 8 August 2014; and
• (C) Email from Fiona Benson to Susie Babani and others dated 8 August 2014.[884]

1. ANZ's defence denies the allegations in [154(i)], stating that:

The conduct alleged at subparagraph 154(i) is incapable of constituting a 'detriment' within the meaning of section 104 of the EOA, by reason of the fact that it relates to matters outside the workplace and employment relationship and to publications by entities and persons other than ANZ...[885]

1. Ms Bashour submits the ANZ Media Release dated 8 August 2014 was a detriment. Ms Bashour submitted it was a reasonable assumption a pelvic examination would be required at the IME. ANZ did not advise Ms Bashour she would not have to undergo a pelvic or gynaecological examination '...despite being on notice she was concerned with this aspect of the examination.'[886] In the media release ANZ described the medical appointment with Dr White 'as being of a different character.' The media release created the impression Ms Bashour '...was dishonest as to the reasons for seeking the urgent injunction.'[887] This caused distress to Ms Bashour and damaged her reputation.
2. Ms Bashour rejected ANZ's submission that the subsequent statement and media posts relate to publications by persons other than ANZ and are therefore incapable of constituting a detriment. Ms Bashour rejected this on the basis of ANZ's role promulgating the misleading impression through emails between Mr Ries and The Age, and Ms Bensen's email to senior ANZ employees including Ms Babani that ANZ '...responded with traditional media (eg Channel 9 interview) and on Twitter (see below after my auto signature). A news item has also been published on MAX under local Australia news.'[888]
3. Further, Ms Bashour submitted Mr Ries, who drafted and distributed the media release, did not enquire beyond ANZ's legal team regarding the nature of the examination, to check '...no such request had been made'.[889]
4. Ms Bashour rejected ANZ's submission that its media release was to ensure fair and accurate reporting. She submitted the evidence demonstrates the media release was not accurate, and ANZ did not take steps to ensure it was.[890]
5. Ms Bashour had raised her concerns about having to 'undergo an invasive gynaecological assessment' in her letter of complaint dated 14 July 2014.
6. Ms Bashour submitted the evidence made it clear, firstly ANZ had no basis to state publicly 'ANZ did not at any time request or require Ms Bashour to undertake a pelvic examination.' And secondly, ANZ's reason for issuing the press release was because Ms Bashour had been reported as objecting to being required to undergo an invasive gynaecological assessment.

1. ANZ submits the media release dated 8 August 2014 was accurate and did not contain misleading information about the litigation and dispute.[891]
2. ANZ submits the media release was issued in response to submissions made by Ms Bashour in open court and reported in The Age that she had been directed to undergo an internal pelvic examination. The direction issued to Ms Bashour on 4 July 2014 required her to attend the IME. It did not refer to an internal pelvic examination or pelvic examination. Mr Ries gave evidence he sought assurances ANZ had not directed Ms Bashour attend for an internal pelvic examination.[892] Mr Ries' evidence was, '[w]e sought to correct the facts around us sending Ms Bashour for an internal pelvic exam. That was it.'[893]
3. ANZ submitted Ms Babani was informed of, but there is no evidence she 'actively encouraged', the alleged media action.[894]
4. ANZ submitted the alleged 'media action' was not engaged in by ANZ because Ms Bashour had made complaints to the Fair Work Commission, Federal Court or ANZ senior management. Mr Ries confirmed in his evidence he was not motivated by any complaints Ms Bashour had made. Ms Babani confirmed in evidence she had not done anything differently because of the proceedings Ms Bashour had commenced in the Fair Work Commission, Federal Court or complaints to ANZ managers.[895]

1. I have previously rejected ANZ's submission that the detriment cannot apply to events occurring outside the workplace and employment relationship. In its defence ANZ has also stated a detriment cannot apply to publications by entities and persons other than ANZ. The evidence from ANZ establishes Mr Ries drafted the ANZ media release and distributed it to journalists who then published it, he spoke to journalists and ANZ actively responded to tweets and comments from the public on Twitter and Facebook, directing these accounts to the ANZ media release. I find ANZ is responsible for the steps leading up to publication. ANZ also published it internally on its internal webpage 'MAX.' Section 104 is broadly couched in terms of 'subjecting' a person to any detriment which in my view could include the actions taken by ANZ. It is an overly legalistic defence inconsistent with the purposes of the EO Act and the facts established by the evidence to claim other entities published the media statement. I am satisfied the verb 'to subject' in section 104 is sufficiently broad to encompass all the steps taken by ANZ in the lead up to the publication of the media release. The issue is whether these actions constitute a detriment to Ms Bashour.
2. I have previously found the direction to attend the IME was reasonable. On an objective assessment of the evidence regarding this direction I found Ms Bashour's subjective belief did not constitute a detriment for the purposes of victimisation.
3. The direction by Mr Zeman to Ms Bashour dated 4 July 2014 stated the following:

Thank you for providing Dr Chew's medical report dated 30 June 2014.

We have reviewed the report and, while it does provide some new information, ANZ remains in a position where:

• firstly, it still has no clear medical evidence of the restriction recommended in view of your condition and prognosis; and
• secondly, Dr Chew states that you are "fit for work", yet at the same time implies that you are unfit to attend your workplace at all, which is required by your role.

As foreshadowed in my email of 23 June 2014, ANZ now requires you to attend an independent medical assessment.

The purpose of the assessment is to provide ANZ clarity in relation to these matters mentioned above and to determine whether you are fit to perform the duties of your role and are able to do so without placing yourself or others at risk. As your employer, ANZ has an obligation to ensure that you and others are not exposed to risks to health and safety. As an employee of ANZ it is a reasonable requirement that you attend this appointment and you are directed to do so.[896]

1. The direction makes it clear the IME is required to establish the 'restrictions' that apply to her condition and prognosis, and to clarify the discrepancy between Dr Chew's description of Ms Bashour being 'fit for work' and yet not being able to attend the workplace. There is also reference to ANZ's responsibilities as an employer under workplace health and safety requirements.
2. In proceedings on 7 August 2014 in the Federal Circuit Court, the transcript states Ms Bashour stated:

The conduct is quite extraordinary actually. The direction that they're suggesting that I failed to comply with is not attending a medical assessment to have an internal pelvic examination by a gynaecologist arranged by the ANZ, all to assess my pelvic instability, which is a natural effect in some women in subsequent pregnancies, and I've provided them with a suite of reports from my obstetrician, at their request.[897]

1. The article published in The Age on 8 August 2014 stated, 'Despite providing her employer with obstetrician reports and blood test results, the bank demanded that she undergo an internal pelvic examination with one of its doctors.'[898]
2. The media release issued by ANZ in response stated:

Following the reporting in today's Age newspaper of Federal Court proceedings in Melbourne by Ms Katherine Bashour, ANZ can clarify the following:

• The primary purpose of the independent consultation with Ms Bashour was to assess the appropriateness of the support measures offered by ANZ to help Ms Bashour work safely from both the office and from home.
• These measures included an offer by ANZ of a free onsite car park and a desk with a permanently allocated meeting room to ensure Ms Bashour did not have to travel around the building unnecessarily for meetings.
• ANZ did not at any time request or require Ms Bashour to undertake a pelvic examination as part of this assessment.[899]

1. In his evidence at the hearing Mr Stephen Ries, then Head of Media Relations, stated that in response to The Age article and media attention and employee queries, '...we just set about correcting the record as we knew it.'[900]
2. Mr Ries stated he sought and was given assurances ANZ had not actually requested Ms Bashour undergo an internal pelvic exam.[901] He was told the purpose of the medical appointment was:

...so that we could come up with strategies for Ms Bashour that she could return safely to work, by things like meeting rooms next to the desk or a car park; these sorts of things...I was given an assurance it wasn't internal pelvic exam.[902]

1. When asked if he had concerns as the media release related to one of ANZ's employees, he stated:

It was certainly top of mind but, you know, what also was top of mind for me was that as I understood it ANZ's position was being misrepresented. So, you know, as an employee of ANZ I didn't want to work at the company if we were sending people off for internal pelvic exams.[903]