Choi v Deloitte Touche Tomatsu

NCAT Administrative and Equal Opportunity|2015-11-27

Type of claim

Ms Paige Choi, (from now on 'the Applicant'), alleged direct disability discrimination in employment under Section 49B(1)(a) and Section 49D(2) of the Anti-Discrimination Act, 1977, New South Wales (from now on 'the Act').
Section 49B(1)(a) states: 1. (1) A person ("the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability.
Section 49D(2) states: "it is unlawful for an employer to discriminate against an employee on the ground of disability: 1. in the terms or conditions of employment which the employer affords the employee, or 2. by denying the employee access, or limiting the employees access, to opportunities for promotion transfer or training, or to any other benefits associated with employment, or 3. by dismissing the employee, or 4. by subjecting the employee to any other detriment."

The evidence

The parties disagree on almost all the factual evidence relating to the Applicant's claim. But there is agreement that the Applicant had a disability, namely tuberculosis, at the time of the events surrounding the Applicant's claim. Given the extent of the disagreement between the parties, the Tribunal must carefully consider whether the Applicant's evidence or the evidence of the Respondent's witnesses should be preferred on the critical issues relating to the Applicant's claim. The Tribunal has carefully read all of the written evidence before it, heard and read all the oral evidence presented during the hearing and considered each party's submissions about the evidence. The Tribunal's consideration of the evidence is set out below.

The events of 23 November 2012

Before Ms Bevan, (from human resources), phoned the applicant in hospital on 23 November 2012, the email trail shows, and the Respondent admits, there had been discussions between Ms Bevan and Ms White, (the Applicant's then supervisor), as to how management should respond to news of the Applicant's illness. On 13 November 2012, Ms White, in an email to Ms Bevan, suggests they propose to the Applicant that she take some time off .
On 23 November 2012 the Applicant was in hospital. A significant telephone call was made by Ms Bevan to the Applicant. Evidence from the Respondent's witnesses indicated it was not the Respondent's normal practice to make calls to an employee while he or she was in hospital. Nevertheless, Ms Bevan made the call.
That conversation was critical to what subsequently transpired. The Applicant contends this conversation was the first indication to her that she may be being "eased out" from her employment.
The Applicant stated by affidavit, in oral evidence and under cross-examination that Ms Bevan suggested three options to her, namely taking unpaid leave, working part-time or resigning. On the same day, shortly after her phone conversation with Ms Bevan, the Applicant wrote an email to Mr Lamont (Partner (audit advisory) and the partner to whom the Applicant was primarily responsible). She states in that email that those were the three options put to her.
The Respondent argues that four options were put to the Applicant in that conversation, the fourth being that she could return to her usual full-time position providing she first produced a medical certificate saying she was fit to return.
Ms Bevan agrees the three options were discussed, although she maintained under cross-examination that the question of resignation was raised by the Applicant, not by her. The file notes she wrote on 23 November 2012 setting out the "discussion of potential options for Paige" state: "SB then talked through the options moving forward for Paige: .a temporary part-time arrangement - SB did make it clear that this would be pending this working for the business .Paige taking a leave of absence to focus on her health . Paige resigning from the firm and taking the time to get better, B made it clear this was an extreme option and not the preference for the firm but that she should seek advice from her doctor on the long-term prognosis on her health to determine if this is something that Paige should consider for her health."
In view of this contemporaneous file note, the Tribunal finds that the option of resignation was raised by Ms Susan Bevan, not by the Applicant.
In view of the almost contemporaneous email that the Applicant sent to Mr Lamont, outlining what, she said Ms Bevan said to her, the Tribunal accepts that, in substance, three options were presented to her, as she claims. The Tribunal is satisfied that the suggestion made to the Applicant was that she should take one of the three options rather than return to work on a full-time basis. It was for that reason she wrote the email to Mr Lamont in the terms she did, on the same day, 23 November 2012. In determining it is appropriate to accept this evidence, the Tribunal has also taken into account that there is no email response from Mr Lamont, Ms Bevan or any other employee of the Respondent correcting the Applicant if she were mistaken in what she had drawn from the conversation with Ms Bevan on 23 November 2012.
At no stage did any employee of the Respondent actively disabuse the Applicant of her assessment that she had been presented with three options in that conversation. Although, as stated earlier, at the end of November 2012, the Respondent did try to disabuse her of the idea that resignation was the only option open to her.
Ms Bevan gave evidence that she asked the Applicant to provide evidence of her medical clearance in the form of a medical certificate. Her file note of 23 November 2012, referred to above, states as follows: "Paige has clearance to return to work, however SB did request a formal clearance from her doctor from Paige prior to her returning to work ."
It is apparent from this file note that the Applicant advised Ms Bevan she had medical clearance to return to work once she was discharged from hospital which, at that point, she believed to be imminent. Contrary to the Respondent's submission, the Tribunal's perusal of the file note does not indicate that the three options were premised on the basis that the Applicant either had no medical clearance to return to work full-time or did not want to return to work full-time.
The Applicant's email to Mr Lamont dated Friday, 23 November 2012, 5:13 PM, states in part: " Doctors are still looking to discharge me early next week. She(sic) also said I should be able to return to work as normal, however she would recommend against travelling for the first two months (since I still need to be at the hospital …every day (or until I no longer need the Picc line. I am hoping all will go smoothly from here on. I only just had a chance to speak to Susan today. She presented a few options for me to think about: work part-time (depending on if there is such opportunity and approvals), leave of absence, or resign. I would like to understand why you/Alison would like me to resign? It is not something I would ever expect to be confronted with while still in hospital. … As mentioned to Susan and above, the doctors say I should be able to get back to work as normal. If these are the only options I have, I will need more time to think it over. My career is important to me, but I don't want to make it more difficult for you and if you think I need to take time off to get better, I will have a good think about it."
If the Applicant had been mistaken in her understanding of what Ms Bevan had said, it could have been expected there would be an email from Mr Lamont or Ms Bevan correcting the misunderstanding and stating that the three options were only intended in the event that the Applicant was either unable to return to the workplace on a full-time basis or preferred not to do so. There is no such communication to the Applicant.
The Tribunal finds that the Applicant advised Ms Bevan she had medical clearance to return to work and that Ms Bevan then put three options to her to consider, as set out above.
It does not appear that the "part-time option" was fleshed out in any way at any point. There is no evidence of any employee of the Respondent spelling out to the Applicant what possibilities there might be for part-time positions. Therefore, the Tribunal finds it is questionable whether the "part-time" option was ever a real option, particularly given the fact that the nature of the Applicant's employment before her illness regularly required, on a full-time basis, up to 60 hours per week plus travel.
It is possible Ms White may have genuinely wanted to explore a flexible work arrangement for the Applicant, but she went on maternity leave in November.
Given the questionable nature of the part-time option, the Tribunal finds that, realistically, at the end of November, the Respondent presented the Applicant with just two options - unpaid leave or resignation.

Conversation with Mr Lamont on 26 November 2012 about the possibility of unpaid leave between end November and early January

Ms Bevan's file note dated 26 November 6.18pm indicates she spoke with Mr Lamont and he indicated to her that the intention was not to "move Paige on" and that he would telephone the Applicant to convey this. However, he did not do this, stating in evidence he thought it preferable to speak with her in person. The Tribunal finds that Mr Lamont and Ms Bevan agreed it should be made clear to the Applicant that resignation was not necessarily the Respondent's preferred option and that it was up to her which of the options she chose. But in agreeing to make this clear, the Tribunal finds they did not agree to make it clear she could return to full-time work at that time.
In fact, it was the Applicant who telephoned Mr Lamont late on the afternoon of Monday 26 November 2012, just after she had been discharged from hospital and he then rang her back at about 6pm. Their conversation is recorded in several different places in the evidence, including Mr Lamont's affidavit, the Applicant's affidavits and her diary notes.
Mr Lamont says the proposal for the Applicant to take a period of unpaid leave came from his concern for her well-being and to provide a fuller opportunity to regain her health over a quiet period. The Applicant attributes this proposal to cost management. The Applicant's evidence is that Mr Lamont asked her to take time off on an unpaid basis "for the sake of the team".
Mr Lamont denies he coerced the Applicant in any way to take unpaid leave but did state in oral evidence that he thought it was a very "mature" response for her to take time off. This is the same adjective the Applicant says Mr Lamont used in her account of what he said to her during their phone conversation.
Mr Lamont agrees he also told the Applicant he did not have much work for her at that time.
The Applicant states she told Mr Lamont during the 26 November conversation with him, that she would be fit to return to full-time work from 30 November, with some accommodation to allow for her ongoing medical treatment.
A letter from Dr Hudson (her treating doctor), dated 9 February 2016, tendered by the Applicant indicates that, on the basis of her medical records plus Dr Hudson's personal enquiries of the applicant's treating doctor at the time, (Dr Tennant), there was a sound basis for the Applicant stating to Mr Lamont that by 30 November 2012 she would be able to return to full-time work, with some accommodation for the treatment.
It is notable that in Mr Lamont's own record of the conversation of 26 November 2012 , there is no evidence Mr Lamont asked the Applicant for a medical certificate stating she would be fit for work on 30 November, 2012. Nor is there any evidence he asked if he or anyone in human resources could speak to her doctor. Nor did he indicate any scepticism about whether she would be able to return to work. In fact there is no evidence in his record of this conversation of any discussion about the possibility of the Applicant returning to work at the end of November.
Had the Respondent allowed the Applicant to return to work from around the end of November 2012, the letter from Dr Hudson of 9 February 2016 indicates the Applicant would have been able to obtain and produce a medical certificate stating she was fit to return at that point.
By the time she in fact asked her doctor for a medical certificate, she had agreed, allegedly under pressure, not to return to work until 7 January 2013. So, obviously, she did not require medical clearance from 30 November 2012. She only required medical clearance from 7 January 2013, the date on which, by agreement with Mr Lamont, she was to return to work.
It was reasonable for the Respondent to require a medical certificate, irrespective of whether the illness was infectious. The only evidence the Tribunal has on this latter issue is Dr Tennant's medical certificate which states, that, properly managed the Applicant's tuberculosis was not infectious.
The Applicant says she agreed to take time off on an unpaid basis in response to the invitation from Mr Lamont to do so. She stated in oral evidence she felt she had little option but to agree to take unpaid leave, as this was the outcome she perceived Mr Lamont wanted.
The Tribunal finds that Mr Lamont suggested the Applicant take the rest of the year off and return to work in the New Year and that she felt pressured to agree to that proposition on a "leave without pay" basis.
Given the financial loss to the Applicant in taking such unpaid leave and the fact that the team results for the team led by Mr Lamont would appear more positive if the Applicant took such leave, rather than being paid when there was not much work around for her to do, the Tribunal is comfortably satisfied that Mr Lamont pressured the Applicant to take unpaid leave until 7 January 2013.
It is also clear from the oral and written evidence that Mr Lamont talked regularly to Ms Margaret Dreyer, (the Senior Partner with overall responsibility, among other tasks, for human resources and known as 'the People Partner'), about the Applicant's illness and how it should be managed by the Respondent. Ms Dreyer was unable to corroborate Mr Lamont's version of any relevant conversation with her. In oral evidence she stated that all she could remember about the Applicant and her situation at the time was that she was "very very sick". She stated in evidence that she did not have any diary notes, file notes or emails regarding conversations about the Applicant she had with Mr Lamont, or any other employee.
Ms White also sent an email to Mr Lamont on 26 November containing a "PS" stating that it was a "good outcome" for the Respondent that the Applicant was taking such unpaid leave.
Ms White commented in that email that that she thought the Applicant was quite upbeat at that point, which suggests Ms White thought the Applicant was happy to be taking time off. By agreement of both parties, Ms White did not give evidence.
The Applicant's email of 29 November 2012 to Mr Lamont and Ms Bevan does not evidence any disquiet about the decision to delay her return to work until January. The Tribunal therefore agrees with the Respondent's submission that the Applicant did not express any discontent to the Respondent at the time of starting this period of unpaid leave.
However, by 7 January 2013, the Applicant definitely felt she had been coerced into taking that period of unpaid leave, and told the Respondent of her disquiet,as evidenced by her email of 7January 2013 to Mr Lamont. And, as stated earlier, the Tribunal accepts Mr Lamont pressured her into agreeing to take the unpaid leave.

Return to work on 7 January 2013

The Applicant returned to work on 7 January 2013. On 8 January 2013 she met with Mr Lamont. At that meeting, the Applicant states Mr Lamont suggested she should resign and look for a 9 to 5 job elsewhere .
Mr Lamont admits he floated the idea that the applicant should find a less stressful job as being one of the options he put to her. He also sent an email to Ms Dreyer in early January 2013, seeking her advice on the Respondent's obligations to accommodate the Applicant's medical treatment needs.
On her return to work, the Applicant alleges management made her feel unwelcome in various ways, including allocating her demeaning tasks, not inviting her to a particular training course, criticising her performance when before her illness there were no criticisms, repeatedly telling her to prepare her CV, conducting an unfair performance management process, and subjecting her to an excessive numbers of meetings with human resources and to special meetings with Mr Wee and Ms Dreyer (senior human resources personnel).
These allegations are all denied by the Respondent, who argues the tasks allocated were reasonable to allocate, involved skill and were not demeaning, there was no intention to exclude her from the particular training course, she was asked to revise her CV so it could be put forward to potential external clients, and her performance declined during that period, warranting criticism.

Interactions with Ms Furlong on 14 and 30 January 2013

The Applicant also states that on 14 January, when she complained to Ms Furlong, in the human resources section, about Mr Lamont wanting her to leave, Ms Furlong told her sickness was "bad for business" and that given the nature of her illness, she should seriously consider one of the three options she'd been given. Ms Furlong denies this. While the Tribunal is unable to rule on whether Ms Furlong said that sickness was bad for business, it is comfortably satisfied she would have continued to promote the Respondent's view that the Applicant should seriously consider taking one of those 3 options.

Interactions with Ms Dassier 7 February 2013

Shortly after the Applicant's return to work in January 2013, Mr Lamont appointed Ms Isabel Dassier to take over her supervision, instead of continuing to perform this role himself. The Applicant alleges Ms Dassier told her Mr Lamont "wanted her out" and that other employees had implied or said similar things about Mr Lamont "wanting her out." An email the Applicant sent to Ms Dassier dated 8 February 2013 refers to this. There is no email from Ms Dassier to the Applicant refuting this allegation.

Human Resources and Performance Meetings

The Tribunal accepts there were a large number of meetings the Applicant attended with the human resources section of Deloitte from when she returned to work on 7 January and that these were very stressful to the Applicant. However the Tribunal is not comfortably satisfied that all of these meetings were engineered in an attempt to force the Applicant to resign, in that it was clear some were called by the Applicant herself.
However, the Tribunal finds that it was out of the ordinary for Ms Dassier to conduct a performance review of the work the Applicant was doing since her return to work, (and not of the work she had done before she went on sick leave), when the Applicant was "on the bench," meaning available for work but not actually doing any of the project work for clients that her usual job entailed.
During this time, the Applicant was allocated a series of largely administrative tasks and she was not nearly as busy as when she was working for clients. The Tribunal is unable to rule on whether these tasks were or were not demeaning, but accepts the Applicant saw them as such. The Tribunal accepts that the evidence presented during the hearing shows the Respondent was continuing to present the Applicant's CV to their potential external clients during this time but notes that the Applicant did not continue to press her original CV claim in her final submissions.
In the Tribunal's view, for work performance to be assessed fairly, an employee needs to be actively engaged in her usual work, rather than being temporarily engaged in non-standard duties and at a lesser pace than usual. The Respondent argues the performance review was conducted at that point because it had been delayed due to the Applicant's illness. However, the Tribunal finds that to conduct it with no assessment of the work she performed during the period before she went on sick leave, and to assess only the work she performed during a time she was neither very busy nor conducting her usual work duties, does not make work sense.
There is no evidence the Applicant's performance had been as intensively managed before her illness as it was after she returned to work in January 2013. Before her illness, the evidence shows she had been seen as performing well. She had a previous favourable performance review and had been nominated for an award for her work.
In January 2013 the Respondent contends that both Mr Greg Haskins, Partner A&A Deloitte and Ms Julie Gough (Director A&A Deloitte) gave the Applicant negative performance-related feedback about the work she was doing at that time. Ms Gough did not give evidence in the proceedings.
Under the pressure of intensive performance management meetings, and having been ill, the Tribunal accepts it is possible the Applicant's performance may have declined during this period, though there is insufficient evidence for the Tribunal to make a finding on this point. The Tribunal is comfortably satisfied that the Applicant spoke to several colleagues about feeling she was being managed out of her appointment and was at times tearful and upset about this. What impact this had on her performance of the tasks allocated to her during this time is not clear from the evidence.
Where the evidence of the Applicant conflicts with the evidence of Mr Bevan, Ms Lamont, Mr Haskins and Ms McNamara (a human resources employee) in relation to these issues, the Tribunal prefers the evidence of the Applicant. In doing so, the Tribunal notes the Respondent did not present any contemporaneous evidence denying what was in several of the Applicant's contemporaneous emails - that is, that she felt the performance reviews were unfair and were an attempt to push her to resign.
Given all of the above, the Tribunal is comfortably satisfied that the performance management review, the manner in which it was conducted and the meetings associated with it were engineered by management to put pressure on the Applicant to resign.

The Applicant's bullying complaint

The Applicant complained to Mr Haskins on 12 February 2013 that she felt she was being bullied to resign. On 14 February 2013 she also complained to Mr Wee of being bullied.
The Respondent's anti-discrimination, harassment and bullying policy states that when a complaint, either formal or informal, is made, it will be taken seriously and may be mediated. Partners, directors and managers are responsible for "being alert to incidents that may constitute discrimination, harassment or bullying and acting to prevent their escalation." Ms Bevan accepted under cross-examination that she did not conduct any investigation into the bullying complaint made by the Applicant and referred to in the Applicant's email to Ms Bevan of 12 February 2013. Mr Haskins also accepted under cross-examination that he did not do anything about her bullying complaint. Mr Wee's response is dealt with in the next section.

Meetings with Mr Wee on 14,15 and 20 February 2013

Mr Wee was the Director of the Human Resources area and was based in Melbourne. He reported to Ms Dreyer. He came to Sydney and met with the Applicant on 14 February 2013.
There is no evidence available as to what Mr Wee was told by management representatives before his meeting with the Applicant. Mr Wee stated in his oral evidence that he had not been briefed by anyone in management. His notes show he became involved in this matter because Ms McNamara emailed him and that he then spoke with both her and Ms Bevan about the matter before he met with the Applicant.
The evidence also shows Mr Lamont had been speaking over the few weeks before that interview with human resources personnel and with Ms Dreyer, to whom Mr Wee reported. Mr Lamont had also been communicating with Ms Dassier. Mr Lamont confirmed these communications in oral evidence. A series of contemporaneous emails demonstrate that over the same period Ms Dassier had also been in communication with human resources personnel about the Applicant's performance review.
There were no written records of any conversations that occurred between Mr Lamont and Ms Dreyer, or between Mr Lamont and other human resources personnel, (including Mr Wee), in evidence, because the Tribunal was advised by the Respondent's witnesses that the human resources section does not keep records of any of their conversations with management unless they are in email form.
Mr Wee and the Applicant both kept notes of their meeting on 14 February 2013. There were subsequent meetings between them both, including a follow up meeting on 15 February at the instigation of Mr Wee, telephone attendance on 20 February at the instigation of Mr Wee, and, later the same day, 20 February, a meeting with Ms Dreyer and the Applicant in person in Sydney and Mr Wee by telephone from Melbourne.
The Tribunal finds that the Applicant made her complaints about bullying and harassment known to Mr Wee.
After considering both Mr Wee and the Applicant's evidence about their 14 February meeting, and given the communication trail listed above, the Tribunal finds that Mr Wee went into this meeting with the Applicant well briefed on management's view of what they wanted and how they saw the Applicant at this point. That management wished her to leave the Respondent's employ at this stage is indicated by the fact that Mr Wee discussed with the Applicant, and then drafted, a separation package for her to consider. The Tribunal does not find it credible, as Mr Wee suggested in his oral evidence, that he proposed and then drafted the separation package with no knowledge of management's wishes. At his first meeting with the Applicant on 14 February, the Applicant states that Mr Wee told her she had three options: to have her bullying allegations formally investigated, to be moved out of her current team when and if other suitable positions became available, or to transition out of employment. According to the Applicant, he made it clear it would be very uncomfortable for her if she went ahead with her bullying investigation, and suggested that her best option was to resign, which, according to her, he repeated at their meeting the day after - on 15 February 2013.
Given Mr Wee drafted the separation package, and given the Applicant, by not signing it, demonstrated separation was against her wishes, the Tribunal is comfortably satisfied that Mr Wee's main reason for meeting with the Applicant on both 14 and 15 February was to facilitate her resignation. When he could not achieve this, he asked Ms Dreyer to become directly involved.

Meeting with Ms Dreyer and Mr Wee on 20 February 2013.

Ms Dreyer was and is a very senior partner with the Respondent, with particular responsibilities in relation to audit and human resources. She stated she could not recall much about relevant matters. She stated her practice is to keep no records of human resources matters. She stated she deletes all her file notes and all emails that have anything to do with human resources.
It is common ground Ms Dreyer was involved in suggesting the Applicant take the separation package and leave her employment. The Applicant alleges Ms Dreyer placed pressure on her by saying the partners would make it very hard for her outside of the Respondent's workplace if she did not do what they wanted, that is, accept the package and leave her employment.
This is denied by Ms Dreyer, who, as is her practice, did not keep any notes of her conversation with the Applicant and could not remember its detail.
In evaluating the evidence of Ms Dreyer, the Tribunal takes into account that at various points she stated she "could not remember" and had no contemporaneous notes. Yet, Ms Dreyer acknowledged it was unusual for her to be involved in a meeting about a separation package. Both she and Mr Wee also told the Tribunal that separation packages had only previously been offered to those whose performance had been assessed over time as sub-standard. In other words, this was an unusual situation. Because of these points, and given the existence of relatively contemporaneous notes from the Applicant, (which in their initial iteration tend to support the Applicant's version of events), where there is a conflict between the evidence of the Applicant and Ms Dreyer, the Tribunal prefers the evidence of the Applicant.
The Applicant did not accept the separation package that was initially presented to her. Then the Respondent effectively doubled the package, making it more attractive to take the package and resign.
The Applicant did not sign the revised separation package but went on sick leave. She stated in evidence that she did not want to resign and felt she was being unfairly pressured to do so.
The Applicant was admitted to a psychiatric hospital shortly after she read the revised separation package emailed to her by Mr Wee. It is not necessary for the Tribunal to make findings as to whether this was a voluntary admission.

Credit Findings

The Applicant gave evidence in a forthright manner and presented as an articulate and intelligent professional.
The Respondent argues that none of the Applicant's evidence is credible because:

some 10 months later she failed to disclose to doctors and to the Respondent she had applied for a position with another organisation while continuing to receive workers compensation payments
there were changes over time in her handwritten notes about her meetings with Mr Wee
her expenses claim was allegedly inflated, and
she had failed to advise her travel insurance provider she had tuberculosis when she travelled to Japan in 2012 on agreed annual leave.

In reaching the factual findings set out in our decision so far, the Tribunal carefully considered each of the above reasons why the Respondent says the Applicant's version of events should not be accepted where it differs from the evidence of any of the Respondent's witnesses.
The Applicant gave her evidence in a frank manner, freely acknowledging the matters set out in paragraph 84 above. In cross-examination the Applicant admitted these matters, when put to her by counsel for the Respondent. She also gave a credible explanation for the most weighty of these - that of not telling the Respondent and the various doctors she had applied for, and obtained, another position, with Commonwealth Bank of Australia (ÇBA'). The Tribunal has taken this into account in the assessment of credit.
The critical question to be answered by the Tribunal as to the Applicant's credit is whether the Tribunal concludes that the witness is telling the truth about the matters in issue in her claim before the Tribunal.
The Tribunal finds the Applicant's evidence on the matters in issue was plausible and credible. She did not appear to embellish her evidence and appeared truthful. Her oral evidence was also consistent with documentary evidence, including contemporaneous emails she sent to members of the management team reflecting her concerns as to what she alleges was occurring during the relevant time. This is in contrast to a general lack of contemporaneous documentary evidence supporting the Respondent's version of events. For these reasons, and as discussed in more detail at the relevant points in its earlier factual findings above, where the Applicant's evidence is in conflict with the evidence of other witnesses, the Tribunal prefers the Applicant's evidence.

The law

It was agreed between the parties that, at the relevant time, the Applicant had a disability, (namely tuberculosis), within the meaning of Sections 4 and 49 A of the Act. It was also agreed that on 3 September 2012 the Applicant advised the Respondent she had been diagnosed with tuberculosis.
As stated in Purvis: in requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without that disability, the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned did not have that disability.
The case was conducted by the Applicant on the basis that she was subjected to discrimination in several ways: in being pressured to take unpaid leave, in being subjected to intense "performance reviews" designed to put pressure on her to resign, in being given unfair performance assessment, in being given demeaning tasks, in being bullied and, ultimately, in being pressured to resign.
The Applicant's Points of Claim allege the Applicant was subjected to discrimination in two ways: "(one) Deloitte repeatedly suggesting and/or requesting Choi to resign from her employment with Deloitte: and/or (two) Deloitte repeatedly subjecting Choi to performance reviews after she had advised Deloitte of the disability in an attempt to have Choi leave or resign from Deloitte."
The Points of Claim filed by the Applicant do not explicitly argue that the other matters referred to in paragraph 91 above constituted discrimination. However, from the time the Applicant lodged her complaint with the Anti-Discrimination Board, these matters were referred to in her statement and later in her affidavits. The various claims made were responded to and evidence was given about them by both parties, beyond the specific pleading in the Points of Claim.
Section 36 of the Civil and Administrative Tribunal Act states the Tribunal is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" as a guiding principle and to give effect to this principle in exercising any power given to it by the Civil and Administrative Tribunal Act or the procedural rules.
Section 38 states: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. …. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
For the reasons outlined above, although the Applicant's Points of Claim confines the case to only two claims of discrimination, the Tribunal decided to take into account and consider each of the behaviours the Applicant alleges constitutes "less favourable treatment" on the grounds of disability. This includes being pressured to take unpaid leave, being subjected to performance reviews that put pressure on her to resign, being given demeaning tasks, being bullied and, ultimately, being pressured to resign.

Comparator

The question of who is a proper comparator is a question of law. The Applicant bears the onus of proof of the claim and must prove, on the balance of probabilities, that the Applicant was treated "less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability"… (S 49 B (1)(a), ADA).
The Applicant's Counsel proposed, on the last day of hearing, a hypothetical comparator as follows: "someone who has the same work experience, skills and experience, as Ms Choi, same level of performance in her role, the same qualifications, without the disability."
In the Applicant's written submissions dated 21 June 2016, the comparator was more explicitly defined as: "an employee who is a Manager and qualified Chartered Accountant with almost 1 years' service and absent any performance issues during that time and who has received a wage increase, a favourable performance review and a nomination for a professional excellence award, who has taken intermittent periods of paid or unpaid authorised leave in the preceding three months due to non work- related illness/injury but has received clearance to return to work and does not have tuberculosis."
As there was no such known employee, in effect this is a hypothetical comparator. The Tribunal agrees this would be an appropriate comparator.
The Respondent submitted that the actual appropriate comparator in this case should be : "a Deloitte employee who has been required to have an extended period off work because of a non-work related injury or illness."
During the hearing there was cross-examination regarding three of the Respondent's actual employees, (referred to during the hearing as "X, Y, and Z"), who, in line with the Respondent's proposed comparator, had extended periods away from work due to non-work related injury or illness. A letter from the Respondent dated 7 December 2015 and addressed to the Tribunal enclosed notes regarding these employees. The Respondent argues these documents show the Applicant was not treated "less favourably" than others with a disability.
It was apparent that each of X, Y, and Z had been permitted sick leave, leave without pay and assisted to transition back to work. It is difficult for the Tribunal to assess whether or not these three employees are appropriate comparators as their level of skill, duration of employment and experience was not presented.
Additionally, it appears that the notes regarding Y and Z refer to relevant periods post-dating the time at which the Applicant was working at the Respondent's workplace, so practice may have changed over time.
For these reasons, the Tribunal is unable to accept X, Y and Z are appropriate comparators. In case the Tribunal is wrong in making this finding, and they are considered to be appropriate comparators, a comparison of the way in which they were treated shows that the Applicant was treated less favourably than each of them in a number of respects. First, there was no evidence any of them had been subjected to the number of management and human resources meetings held with the Applicant. Secondly, there was no evidence any of them had been presented by management with an option of resignation while in hospital. Thirdly, there was no evidence any of them had been pressured to take unpaid leave, as the Tribunal has found occurred in the Applicant's case. Fourthly, there is no evidence any of them were even offered a salary package, let alone pressured to take a package and resign their positions, as the Tribunal has found happened to the Applicant. Fifthly, it appears the arrangements relating to X, Y and Z were dealt with by Ms Bevan and Ms Furlong. In the case of the Applicant, much more senior personnel - Mr Lamont, Mr Wee, and Ms Dreyer - played significant roles in relation to negotiating arrangements relating to the Applicant's employment and potentially ending her employment.
If the comparator is considered to be a person with similar skills, abilities, qualifications and experience, with an illness but without tuberculosis, then, on the assumption X, Y and Z did have such comparable attributes, the Tribunal finds that the Applicant was treated less favourably than each of those persons from the time of her talk with Ms Bevan on 23 November 2012 until she received the revised separation package.
The Tribunal then assessed whether the Applicant was treated less favourably than the more explicit definition of the hypothetical comparator that was ultimately proposed by the Applicant's representative (see paragraph 98 above) and that the Tribunal has agreed is an appropriate comparator. The Respondent has written policies relating to sick leave, other leave, and to discrimination harassment and bullying. These help the Tribunal in determining how such a hypothetical comparator would have been expected to be treated by the Respondent.
A perusal of the Personal (Sick And Carers Leave) policy does not indicate that taking leave excessively will result in a person being asked on a number of occasions whether she wishes to resign. Clause 5.5 states that: "Regular repeated absences, with or without medical certificates, over an extended period of time or to a level that prevents an employee from meeting the requirements of the role may result in disciplinary action."
The absences of the Applicant were undertaken with medical certificates and there was no indication that due to the leave taken before 23 November, the Applicant was unable to meet the requirements of her role.
The policy indicates that it is only once an employee is unable to meet the requirements of his/her role that disciplinary action is considered and even then, use of the term "disciplinary action" suggests a range of possible penalties, not merely forced resignation.
This suggests that the way in which the Applicant was treated was less favourable than that set out as being the norm in the relevant policy.
The anti-discrimination, harassment and bullying policy states that when a complaint, either formal or informal, is made, it will be taken seriously and may be mediated. Partners, directors and managers are responsible for "being alert to incidents that may constitute discrimination, harassment or bullying and acting to prevent their escalation."
Mr Haskins accepted he did nothing about the Applicant's bullying complaint, and Mr Bevan and Mr Wee also accepted, under cross-examination, that they did not conduct any investigation into the Applicant's bullying complaint. This too appears to indicate conduct that differed from that set out in the relevant policy. That policy can also be regarded as an indication from the Respondent as to how it intended to conduct business and provides a standard against which the actual treatment of the Applicant can be measured.
For these reasons, the Tribunal finds the Applicant was treated differently from the more explicit exposition of the hypothetical comparator proposed by the Applicant and accepted by the Tribunal as appropriate.

Causation

The Tribunal is comfortably satisfied the treatment received by the Applicant was due, in part, at least, to the fact that the Applicant had a form of tuberculosis.
There was a perception by the Respondent's management personnel that the Applicant had an infectious disease. Indeed, this is emphasised in the Respondent's written submissions. The Applicant states Mr Lamont and Ms White were concerned that the Applicant was or may be infectious and there was a drawing in the workplace on a whiteboard for a couple of weeks showing that the Applicant was 'quarantined'. However, the evidence shows that, from the time the Applicant first notified the Respondent of her tuberculosis until the time she received the second revised separation package, before leaving the workplace in late February 2013, the Respondent never checked with the Applicant's doctors or indeed anyone with medical knowledge whether or not her form of tuberculosis was infectious.
The medical certificate from Dr Tennant dated… stated that: "properly managed the illness is not infectious."
The Respondent never sought any additional medical evidence about the nature of the Applicant's tuberculosis until after the events at issue in these proceedings. It was clear the Applicant was complying with the treatment prescribed by her doctors. There was no evidence her illness was not being properly managed by her or her doctors.
There was evidence from a number of witnesses, including Ms Dreyer and Mr Wee, that they regarded the Applicant as being "very sick". We have also found that Mr Lamont and Mr Wee were concerned about whether the Applicant could manage the hours, travel and stress demands of her job while she was being treated for tuberculosis. Ms Bevan also mentions in her email to Ms White on 23 November 2012 that "she will not be able to travel for the next two months".
The Tribunal considers it more likely than not that the motivation for the treatment received by the Applicant was fear of infection, at least in part. Yet, despite this fear, the Respondent made no further enquiries of her doctors as to whether the Applicant would be able to infect others until around the time she began receiving workers compensation payments, after she had ceased attending the workplace in late February 2013.
The Respondent could also have had the Applicant medically examined and obtained its own medical evidence as to whether or not she was fit to resume her duties while she was being treated for tuberculosis. The Respondent did not do this during the period at issue in these proceedings.
The Tribunal is satisfied that the options offered to the Applicant when she was ill, the coercion to take the period of unpaid leave, the performance management of the Applicant, and the pressure put on her to accept a separation package all occurred, in part, at least, for a discriminatory reason, namely due to her tuberculosis.
Another employee of similar skills, qualification and experience but without tuberculosis would not have been coerced into taking unpaid leave, would not have been performance managed in the way and to the extent that the Applicant was performance managed and would not have been pressured to resign.
The Tribunal is satisfied that one of the reasons for the less favourable treatment the Applicant received was 'on the ground of', ' because of,' and 'by reason of' her disability, to use the language of the majority decision in Purvis v New South Wales ('Purvis') that she had tuberculosis. This was one of the "real", "genuine" or "true" reasons for the differential treatment received by the Applicant. The Applicant was treated less favourably than a hypothetical comparator due, at least in part, to her tuberculosis. The Applicant was also treated less favourably than X, Y or Z due, at least in part, to her tuberculosis.
The Tribunal finds that the Applicant was treated less favourably due to her disability than she would have been if she did not have that disability, namely tuberculosis.

The same or not materially different circumstances

The Respondent argues that in the period January to February 2013, relevant circumstances extended to include the fact that the Applicant was an employee who was outwardly unhappy at work and whose performance had deteriorated.
In view of the findings of the Tribunal that the Applicant was experiencing discriminatory treatment from 23 November 2012 onwards, the fact that she may have been perceived to be unhappy in the workplace would not be surprising and cannot alter the assessment of the Tribunal that she was being treated in a discriminatory fashion.
Even if apparent unhappiness and reduced performance were factors in the way she was being treated, then, as set out in Section 4B of the Act, so long as the discriminatory reason is one of the reasons for her treatment, even if there were other, additional reasons for the treatment she received, the treatment is still discriminatory and actionable as such, as set out in Section 4A of the Act.
If distress in the workplace caused by discrimination could constitute a change in circumstances such that the nature of the comparator was altered, it can readily be seen that it would be very difficult to find a true comparator.
In terms of the Applicant's performance, there is no evidence that it changed in relation to her substantive position and tasks in January and February 2013. This is because she was doing much less work than usual and had not been engaged to work on any of the client projects that formed the essence of her substantive position. She was "benched" for almost the entire period, and undertaking tasks of a predominantly more routine, administrative nature.

Detriment

The Respondent argues that even if there was less favourable treatment of the applicant, she did not suffer any detriment as defined by Section 49D(2)(d) of the Act.
The Applicant argues that from 23 November 2012 she was subjected to detriment in that she was pressured to take one of three options rather than being allowed back to full-time work, and pressured to take unpaid leave for a period. She also argued that on her return to work in January 2014, she was subjected to detriment in that she was performance managed intensively to the point of bullying, and repeatedly pressured to resign from when she returned to work until she received the revised separation package.
The Tribunal finds that the Applicant experienced a detriment in being pressured to take unpaid leave, in that, once she took that option she lost pay.
The Tribunal finds that the performance management it has found occurred unfairly was detrimental to her health and well-being. This is evident not just from the Applicant's own evidence but also from the fact that Mr Wee was concerned about her emotional health by the time he saw her.
The Tribunal accepts the Applicant's submissions that being pressured to resign from a position she enjoyed, where she was remunerated according to her skill levels, when she had previously received very positive assessments of her performance, including being nominated for an award, and where there were possibilities for advancement in a large, prestigious commercial firm was a detriment. The Tribunal finds that being pressured to resign from her position was detrimental to her sense of self, health and well-being. The fact that the Applicant did not take up the separation package does not mean there was no detriment.

Remedy

The Applicant seeks orders for compensation for economic and non-economic loss.
The Tribunal has considered the particulars of the claim put forward by the Applicant. A number of items claimed are not consequential upon the discrimination experienced by the Applicant. There is also a dearth of supporting documentation.
The Applicant started work with the Commonwealth Bank of Australia ( 'CBA') on 13 January 2014. From that time, her salary, of $147,487.50 exceeded her salary with the Respondent of $124,000. Any economic loss ceased when she started work with CBA.
The Applicant received workers' compensation payments covering the period from when she stopped attending the Respondent's workplace until January 2014. The Applicant claims that the difference between the workers' compensation payments and her salary, loss of superannuation and reimbursement for the unpaid leave she was pressured to take between 26 November 2012 and 6 January 2013 amounts to a total sum of $35,928.93.
As the Respondent points out, no documentary evidence of that claim has been produced. On the other hand, the Respondent has not disputed the actual amount claimed. It has just made the point that there has been no documentary evidence of the amount.
The Tribunal takes judicial notice of the fact that there can be a difference between workers' compensation payments and an employee's usual salary, including superannuation. This is a matter that is well known and it is appropriate to take judicial notice of it.
In light of the finding of the Tribunal that the Applicant was pressured into agreeing to take unpaid leave for six weeks due at least in part to her illness, the Tribunal awards the sum of $14,307.69 to the Applicant (being a six week portion of a salary of $124,000 per annum, including superannuation) for loss of salary for that period.
As to the balance of the difference between the Applicant's salary plus superannuation and her workers compensation paents, said to be $21,621.64, the Tribunal awards the Applicant the difference between what would have been her salary plus superannuation had she received it, and the workers compensation payment she did receive for the period from the date when the Applciant ceased to receive her usual salary and the date in which she started work with CBA. If the parties are unable to agree on the figure for this loss, then within 21 days of the date of this decision hey are permitted to advise the registry and a timetable will be set for submissions on the matter.
In terms of non-economic loss, the Applicant has not tendered any medical evidence probative of her having a recognised mental condition due to the discrimination she experienced. Nevertheless, it appears to be common ground that towards the end of her time with Deloitte, she was tearful, was crying in the toilets and had told colleagues how unhappy she was that she was being "forced out" of the company.
It was evident in the witness box from her tearful presentation, at times, that the events that led to her stopping attending the Respondent's workplace still cause her great distress.
Upon learning of the fact that the Applicant was working for CBA, Dr Rowe, for the workers compensation insurer, withdrew his previous opinion and stated that in his view the Applicant did not have a recognisable psychiatric illness.
The Tribunal also notes there is evidence that the Applicant refused to take anti-depressant medication and that her doctor, Dr Tennant, recommended she should not return to work at the time she started work with CBA. The Tribunal finds that it is possible these two decisions may have contributed to the Applicant's inability to adequately recover from the stress of the discrimination it has found occurred. In the Tribunal's view, by deciding not to take prescribed anti-depressant medication and deciding to start work with the CBA against her doctor's advice, the Applicant failed to mitigate her loss. These decisions by the Applicant must be taken into account in assessing an amount for non-economic loss.
The Tribunal accepts that at the time the Applicant stopped attending the Respondent's workplace in late February 2013, she was in deep distress and was admitted to a psychiatric hospital due to that deep distress. The Tribunal also accepts she was receiving therapeutic counselling throughout the period she was receiving workers' compensation payments.
In the light of our reasoning above, the Tribunal awards the sum of $10,000 for non-economic loss.
As to the Applicant's claim for other medical and discretionary expenses in the sum of $4,096.47, no primary evidence to support the claim was adduced and no amount is allowed.
The claim of $13,470.00 for counselling is not allowed because the Applicant could have chosen to not take up a new job, continue receiving workers' compensation payments and had counselling paid for by the workers' compensation insurer. She elected to start a new job against her doctor's advice. Had she heeded that advice, she may have recovered more fully and more quickly.
The Applicant seeks an apology from the Respondent. The Tribunal may order that an apology be provided under Section 108 of the Anti-Discrimination Act, 1977.However, this matter has been contested and there appears to be little practical utility in making such an order. The Tribunal declines to make such an order.
The Applicant claims unspecified "special damages". There is no warrant for special damages to be awarded and the Tribunal declines to award them.
The Applicant has claimed legal fees. However, on the basis of the evidence presently before the Tribunal, the Tribunal finds that there are no "special circumstances" to warrant departure from the usual rule as to costs in this jurisdiction, namely that parties pay their own costs. Should there be any application for costs in this matter, the parties have leave to make that Application within 21 days of the date of this decision. The Tribunal would then make directions for each party to make submissions as to costs.********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2016

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