Commissioner of Police v Mooney

CITATION: Commissioner of Police v Mooney (No.2) [EOD] [2003] NSWADTAP 67 APPELLANT PARTIES: Commissioner of Police, New South Wales Police Service RESPONDENT Dennis James Mooney FILE NUMBER: 039036 HEARING DATES: 11/08/03 SUBMISSIONS CLOSED: 08/11/2003 DATE OF DECISION: 12/18/2003

Mooney v Commissioner of Police, NSW Police Service (No.2) [2003] NSWADT 107 DECISION UNDER APPEAL: BEFORE: Chesterman M - ADCJ (Deputy President); Rees N - Judicial Member; Taksa L - Member CATCHWORDS: leave to extend to the merits - statutory interpretation MATTER FOR DECISION: Principal Matter FILE NUMBER UNDER APPEAL: 021094 DATE OF DECISION UNDER APPEAL: 05/19/2003 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Human Rights and Equal Opportunity Commission Act 1986 (Cth) Advertiser Newspapers v Industrial Relations Commission of South Australia (1999) 90 IR 211 Allison v Bega Valley Council (1995) 63 IR 68 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commissioner of Police v Mooney [2001] NSWADTAP 20 Commissioner of Police, NSW Police Service v Mooney (No 3) [2003] NSWADT 189 Concut Pty Ltd v Worrell [2000] HCA 64 CASES CITED: Malik v Bank of Credit & Commerce International SA (In liq) [1998] AC 20 Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231 Purvis v NSW [2003] HCA 62 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 State Transit Authority v Sloey [1999] NSWSC 47 Walker v State of NSW [2003] NSWADT 13 Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761 Woolworths (SA) Pty Ltd v Russian (1996) 66 IR 13 X v Commonwealth (2000) 200 CLR 177 APPELLANT REPRESENTATION: S Winters, barrister RESPONDENT S Beckett, barrister ORDERS: 1. Appeal dismissed

Introduction 1 The Commissioner of Police (the Commissioner) has appealed against a decision made by the Equal Opportunity Division of the Tribunal on 19 May 2003 that the Commissioner unlawfully discriminated against a former employee, Mr Dennis Mooney, on the ground of disability. The Tribunal subsequently made orders for relief in favour of Mr Mooney (Commissioner of Police, NSW Police Service v Mooney (No 3) [2003] NSWADT 189). Those orders have not been challenged in this appeal. 2 The appeal was heard in Sydney on 11 August 2003. Both parties were represented by counsel: Ms Winters represented the Commissioner and Mr Mooney was represented by Mr Beckett. History of the proceedings 3 This case has a long history. Mr Mooney worked as an accountant with the NSW Police Service from January 1988 to August 1995. He resigned from that position in July 1995 following what he described as age discrimination from his supervisor, Inspector Robert Clark. In February 1996 Mr Mooney lodged a complaint of age and disability discrimination with the President of the Anti-Discrimination Board (ADB). That matter was eventually referred to the Tribunal for the purposes of an inquiry pursuant to s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 17 March 2000 the Tribunal dismissed the Commissioner's application that the complaint be summarily dismissed pursuant to s 111 of the AD Act because the complaint was lodged out of time and, in the alternative, because it was misconceived and lacking in substance. That Tribunal rejected the Commissioner's application and the Commissioner then appealed to an Appeal Panel. 4 That appeal was successful. On 18 June 2001 the Appeal Panel found that Mr Mooney's complaint against the Commissioner had not been lodged with the President of the ADB within six months of the alleged acts of discrimination, as required by s 88(2) of the AD Act. As the President had not exercised his statutory discretion to accept the complaint out of time, the Appeal Panel dismissed the complaint (Commissioner of Police v Mooney [2001] NSWADTAP 20). 5 Mr Mooney subsequently re-lodged his complaint with the President, who accepted it out of time. The President then declined that complaint on the ground that it was lacking in substance. At Mr Mooney's request the complaint was referred to the Tribunal, which dismissed his claim of age discrimination, but found his complaint of discrimination on the ground of disability to be substantiated. It is that decision, delivered on 19 May 2003, which is the subject of this appeal. The Tribunal's decision 6 The Tribunal heard the case over two days in February 2003. Mr Mooney gave evidence. He also presented evidence from Mr Andy Wright, an industrial officer employed by the Police Association of NSW. Numerous documents were annexed to the statements of both Mr Mooney and Mr Wright. Neither witness was cross-examined. The Commissioner did not lead any evidence. The Tribunal found that Mr Mooney was employed by the Commissioner as an accountant from January 1988 until August 1995, when he resigned. It concluded that the Commissioner contravened s 49D(2)(c) of the AD Act by causing Mr Mooney to be constructively dismissed from his employment and, in the course of doing so, by discriminating against him on the ground of his disability. 7 The Commissioner was found to have engaged in direct discrimination on the ground of disability, as defined in s 49B(1)(a) and (2) of the AD Act. The Tribunal noted that at various times during his employment with the Commissioner, Mr Mooney suffered from "gall bladder disease, abdominal pain, osteo-arthritic knees, migraines, viral infections, gastrointestinal problems, diarrhoea and a chest infection". The Tribunal found that the operative reason for the discrimination and the constructive dismissal was not any or all of the disabilities experienced by Mr Mooney but a characteristic that appertains generally to people who have Mr Mooney's combination of disabilities, namely a tendency to take substantial amounts of sick leave. The grounds of appeal 8 The Commissioner raised 23 grounds of appeal. Twenty-two of these grounds were said to raise questions of law and the Commissioner also sought leave to review the merits of the decision. 9 Section 118 of the AD Act provides that a party may appeal to an Appeal Panel against a decision made under that Act by the Tribunal. Section 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) provides for an appeal as of right on a question of law. The leave of the Appeal Panel is needed for the merits of the Tribunal's decision to be reviewed on appeal. Due to the wording of s 113(2) of the Tribunal Act, Appeal Panels have consistently held that it is necessary to identify an error of law before leave to review the merits of the Tribunal's decision may be granted (see e.g. Brandusoiu v Commissioner of Police [1999] NSWADTAP 8). No reasons have been put to us why we should depart from this approach to the Appeal Panel's powers in this case. 10 At the hearing of the appeal, and in her written submissions, counsel for the Commissioner did not address the grounds of appeal sequentially. It has been left to the Appeal Panel to relate the Commissioner's written and oral submissions to the actual grounds of appeal. Counsel for Mr Mooney submitted that most of the appeal grounds raised by the Commissioner were challenges to the Tribunal's findings of fact. 11 In broad terms, the Commissioner claimed that the Tribunal had fallen into legal error in two aspects of its decision: first, the Tribunal's construction and application of s 49D(2)(c), the substantive provision in the AD Act which the Commissioner was found to have contravened, and, secondly, the Tribunal's construction and application of that part of the statutory definition of discrimination on the ground of disability, the so-called 'characteristics extension', which was found to be of significance in this case. All but one of the 22 appeal grounds said to raise questions of law relate to these two issues. The first appeal ground, which was that the Tribunal "erred in law in determining that the complaint of discrimination on the ground of disability be substantiated", is expressed at such a level of generality as to render it a meaningless ground for the Appeal Panel to consider. 12 For the reasons which follow, we do not believe that the Commissioner has identified any errors of law in the other 21 challenges to the Tribunal's reasons for its decision. Consequently, in keeping with earlier decisions of the Appeal Panel, we decline to consider the Commissioner's remaining appeal ground, which was an application for leave to re-consider the merits of the Tribunal's decision. The finding of a contravention of s 49D(2)(c) of the AD Act 13 The Tribunal found that the conduct of Mr Mooney's supervisors over a period extending from November 1994 to July 1995 constituted unlawful discrimination on the ground of disability and that this conduct caused Mr Mooney to be "dismissed" from his employment in breach of s 49D(2)(c) of the AD Act. Section 49D(2)(c) renders it "unlawful for an employer to discriminate against an employee on the ground of disability…by dismissing the employee". It was not in dispute that the Commissioner and Mr Mooney were in the relationship of employer and employee at all relevant times and that the Commissioner was liable under the AD Act for the conduct of those of his employees who were Mr Mooney's supervisors. 14 The Tribunal's reasoning in relation to the contravention of s 49D(2)(c) of the AD Act is encapsulated in paragraph [48] of its reasons which reads: We are satisfied on the basis of all Mr Mooney's evidence (none of which was challenged) that the conduct of the respondent's employees put pressure on Mr Mooney to resign. He was repeatedly given the impression that his sick leave record, per se, was unsatisfactory and that disciplinary action could follow if it did not improve. Mr Mooney was in no position to "improve" his sick leave record because his disabilities meant that he needed to take substantial amounts of sick leave. In those circumstances his resignation was not freely given and the conduct referred to above was the real and effective initiator of the termination of his contract of employment. His resignation was, in effect, a response to and consistent with a desire by the respondent that such resignation be forthcoming. 15 At paragraph [41] of its decision the Tribunal quoted with approval an extract from the earlier Appeal Panel decision concerning the parties to this appeal, Commissioner of Police, NSW Police Service v Mooney [2001] NSWADTAP 20 at [14] and [15], in which that Appeal Panel appeared to accept that the concept of "constructive dismissal" falls within the prohibition on conduct by employers set out in s 49D(2)(c) of the AD Act. In reaching that conclusion, the Appeal Panel quoted with approval an extract from the decision by the NSW Industrial Relations Commission in Allison v Bega Valley Council (1995) 63 IR 68 concerning the meaning of the term constructive dismissal in the context of unfair dismissal legislation. 16 The conduct on which the Tribunal relied to find that Mr Mooney had been constructively dismissed was also the conduct on which it relied in concluding that the Commissioner, in constructively dismissing Mr Mooney, had discriminated against him on the ground of disability. The salient facts appear to be that in September 1994 Inspector Clark became Mr Mooney's supervisor. Shortly before this change of supervisor Mr Mooney took a substantial amount of sick leave, supported by medical certificates, for a gall bladder operation. Whilst Mr Mooney had taken some sick leave over the previous six years he was "in credit" at this time. After returning to work in September 1994 following gall bladder surgery, Mr Mooney was told by his supervisors that he would be referred to Healthquest for a fitness for work examination. It appears that this examination was not conducted even though Mr Mooney expressed a willingness to attend. 17 Thereafter Mr Mooney was required by various officers in the Personnel branch of the NSW Police Service to provide medical certificates for every sick day taken. The Commissioner's own Sick Leave Policy supported this practice in limited circumstances. The Commissioner has conceded that Mr Mooney did not fall within those limited circumstances at this time. The Commissioner has also acknowledged that a number of directives given to Mr Mooney between September 1994 and July 1995, to the effect that he should supply medical certificates for all sick days and "improve" his sick leave record, fell outside the Sick Leave Policy. In December 1994, March 1995 and April 1995 Mr Mooney received letters from officers in the Personnel branch referring to his "unsatisfactory" sick leave record. He was directed to show "improvement". Matters came to a head on 12 July 1995 when Mr Mooney received a written direction from Inspector Clark to supply a medical certificate for each day he was on sick leave over the next six months. This direction fell outside the terms of the Commissioner's Sick Leave Policy. Shortly after this meeting Mr Mooney submitted his resignation in writing, in which he stated: "Resulting from my age, I have been the subject of harassment and discrimination from Robert Campbell Clark with the result that I am compelled to give this notice of my early resignation". At the time Mr Mooney was 65 years of age. The finding of discrimination on the ground of disability 18 In order for Mr Mooney to succeed in his complaint it was necessary for the Tribunal to find not only that the Commissioner's conduct fell within s 49D(2)(c) of the AD Act but also that the conduct - the constructive dismissal of Mr Mooney - constituted discrimination against Mr Mooney on the ground of disability. 19 The concept of discrimination on the ground of disability is defined in s 49B of the AD Act. Section 49B(1)(a) defines what is usually referred to as direct discrimination while s 49B(1)(b) defines indirect discrimination on the ground of disability. Section 49B(2) - the so-called 'characteristics extension' - extends the definition of direct discrimination by rendering it unlawful to discriminate against a person on the ground of a characteristic that appertains generally to, or that is generally imputed to, people who have the same disability as the alleged victim of the discrimination. Section 49B(3) is a specific application of the 'characteristics extension' to people with disabilities relating to vision, hearing or mobility. The sub-section declares that being accompanied by a dog which assists a person in respect of a disability related to vision, hearing or mobility is a characteristic that appertains generally to people with such disabilities. Section 49B(4) is designed to clarify the choice of comparators and base groups in a direct or an indirect discrimination case. In effect s 49B(4) provides, not particularly clearly, that like is to be grouped with like by declaring that a reference to persons who have a disability "is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability". 20 The treatment of a person with a particular disability must be compared with the treatment of a person who does not have that particular disability. Thus, in a direct discrimination case, if the alleged victim is a deaf person, his/her treatment is to be compared to people who do not have any hearing loss. In an indirect discrimination case, the capacity of people with substantial hearing loss to comply with the challenged condition or requirement is compared with the capacity of people without any hearing loss to comply with that condition or requirement. 21 The Tribunal's finding in this case was one of direct discrimination. It relied upon a combination of both s 49B(1)(a) and s 49B(2) of the AD Act in order to find that the Commissioner had discriminated against Mr Mooney on the ground of a characteristic that appertains generally to people with his range of disabilities rather than upon the ground of one or more of his actual disabilities. That characteristic was found to be "a tendency to require substantial amounts of sick leave". 22 The Tribunal's reasoning in relation to its finding that the Commissioner discriminated against Mr Mooney on the ground of disability is explained in the following extracts from its decision: 58…The Tribunal must ask whether it is a distinguishing peculiarity or quality of persons suffering from Mr Mooney's disabilities that they have a tendency to take substantial amounts of sick leave. There was no evidence supporting this proposition apart from the evidence of Mr Mooney's sick leave. However, to use Barr J's language in Sloey's case, it is not straining the ordinary meaning of the words to describe a tendency to require substantial amounts of sick leave as a characteristic or a distinguishing peculiarity or quality that people with the same disabilities as Mr Mooney have… 73. In our view, the respondent would not have treated an employee who took substantial amounts of family and community services leave, maternity leave, study leave or leave without pay to which they were entitled, as unfavourably as it treated Mr Mooney. From November 1994, there was no legitimate suspicion that Mr Mooney was misusing his sick leave. He did not exceed the leave to which he was entitled. Yet he was counselled on several occasions and told that his sick leave record was "unsatisfactory" and that adverse consequences may follow if that record continued. This conduct eventually resulted in his constructive dismissal. Comparable employees would not have been treated in that way. 74. Causation. The next element of direct disability discrimination is that the treatment must be "on the ground" of Mr Mooney's characteristic. Under s 4A of the AD Act, it is sufficient if "one of the reasons consists of unlawful discrimination…whether or not it is the dominant or a substantial reason for doing the act". It is self evident that Mr Mooney was required to provide medical certificates after November 1994, subjected to counselling and warned of the consequences of a continuing "unsatisfactory" sick leave record, because of his tendency to take substantial amounts of sick leave. Similarly the constructive dismissal occurred because of that characteristic. Consequently this treatment was "on the ground of" a characteristic that appertains generally to people with his disabilities. The appeal grounds relating to the finding of constructive dismissal 23 As the Tribunal found that the same conduct by the Commissioner constituted both the treatment which led to Mr Mooney's constructive dismissal and the discrimination against him on the ground of disability, there is some overlap in those parts of the Tribunal's reasoning challenged by the various appeal grounds. The following appeal grounds appear to challenge the Tribunal's construction of s 49D(2)(c) of the AD Act and its finding that Mr Mooney was constructively dismissed: 4. The Tribunal erred by applying a subjective test in determining that the Respondent had been constructively dismissed (paragraphs 38,48). 7. The Tribunal erred by misconstruing the Respondent's letter of resignation as being related to alleged discrimination on the ground of disability (paragraph 42) when the letter states: "Resulting from my age, I have been the subject of harassment and discrimination from Robert Campbell Clark with the result that I am compelled to give this notice of resignation" 8. The Tribunal erred by misconstruing the letter of resignation as being about counselling about his "unsatisfactory" sick leave record (paragraph 42). 9. The Tribunal erred by misconstruing the letter of resignation as referring to being counselled about his "unsatisfactory" sick leave record limited to the period November 1994 to July 1995 when there was no basis for this construction (paragraphs 42 and 43). 10. The Tribunal erred by misconstruing the Appellant's sick leave policy as being a definitive document as though it were equivalent to legislation (paragraphs 16-18, 46, 73). 11. The Tribunal erred by taking into consideration "all of the evidence" when much of the tendered evidence had been rejected on objection by the Appellant (paragraph 48). 13. The Tribunal erred by stating that none of Mr Mooney's evidence was challenged (paragraph 48). 14. The Tribunal erred in concluding that the "conduct of the respondent's employees put pressure on Mr Mooney to resign" (paragraph 48). 15. The Tribunal erred in concluding that "Mr Mooney was in no position to 'improve' his sick leave record because his disabilities meant he needed to take substantial amounts of sick leave" (paragraph 48). 16. The Tribunal erred by considering the "impression" claimed to have been given to the Respondent that his sick leave record, per se, was unsatisfactory and that disciplinary action could follow if it did not improve (paragraph 48). 17. The Tribunal erred in concluding that the Respondent's resignation was not freely given (paragraph 48). 18. The Tribunal erred in concluding that the [sic] there was a desire by the respondent that such resignation be forthcoming when there was no evidence to support that conclusion (paragraph 48). 21A. The Tribunal erred by failing to consider the offer made by the Respondent that the Complainant not proceed with his resignation pending the outcome of the Internal Affairs investigation. While the Appellant denies any constructive dismissal, this offer not to proceed with resignation contradicts the claim that the Complainant was constructively dismissed. 24 The Commissioner did not challenge the Tribunal's conclusion that the concept of constructive dismissal falls within s 49D(2)(c) of the AD Act but he did challenge the manner in which the Tribunal found that Mr Mooney had been constructively dismissed. Even if the concept of constructive dismissal is not encompassed by s 49D(2)(c), the AD Act contains other substantive provisions which appear to govern the circumstances of this case. It was open to Mr Mooney to argue that the conduct of which he complained constituted a "detriment" within the meaning of s 49D(2)(d), or that this conduct concerned his "terms or conditions of employment" within the meaning of s 49D(2)(a). Ultimately, the only practical effect of the finding that the Commissioner had contravened paragraph (c), rather than paragraphs (a) or (d) of s 49D(2) of the AD Act, was the potential impact of that finding upon the measure of damage suffered by Mr Mooney. A finding that he was dismissed because of discriminatory conduct permitted Mr Mooney to claim damages in excess of those which he may have rightly been able to claim if the findings had been (a) that he was discriminated against in the course of his employment, but (b) that the termination of his employment contract with the Commissioner was not causally related to the unlawful discrimination. As we have already noted, the Tribunal's decision concerning relief has not been challenged in this appeal. 25 In the absence of any challenge to the Tribunal's finding that the words "by dismissing the employee" in s 49D(2)(c) include the notion of constructive dismissal, we propose to proceed on the basis that the Tribunal was correct in reaching this conclusion. When the concept of constructive dismissal is considered in some detail it becomes apparent that various courts and tribunals have used the term with different meanings. This has sometimes occasioned difficulty, as it has in this case. 26 The concept of constructive dismissal has been developed and applied by various courts and tribunals in the United Kingdom, Australia and other common law jurisdictions in the context of statutory schemes concerning unfair dismissal from employment (see G McCarry, "Constructive dismissal of employees in Australia" (1994) 68 ALJ 494). As the trigger for access to these statutory schemes is dismissal from employment, various courts and industrial tribunals, working from first principles of contract law, have held that in some circumstances an employee may be regarded as having been dismissed from employment even though the employee rather than the employer was the party who actually terminated the contract of employment. 27 The starting point for consideration of the concept of constructive dismissal is usually the English Court of Appeal's decision in Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761. In that case, which concerned the issue of whether an employee who resigned from his employment could have access to a statutory regime governing unfair dismissal in employment, the Court of Appeal determined that the words "unfairly dismissed" were not limited to cases where the employer brings the employment relationship to an end but "also apply to cases where the man leaves of his own choice, if he can show that it was due to the way the employer treated him" (per Lord Denning MR at 767-768). 28 Later in his judgment (at 769) Lord Denning explained the concept of constructive dismissal in more detail: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract. So explained the concept of constructive dismissal is simply a specific application to contracts of employment of the general principle of contract law that when one party to a contract engages in conduct which involves breach of an essential term, or otherwise repudiates the contract, the innocent party may elect to terminate the contract. An innocent employee who elects to terminate the contract in these circumstances is regarded as having been constructively dismissed when the notion of dismissal is necessary in order to claim the benefit of a statutory scheme that regulates unfair dismissal or otherwise depends upon an employee having been dismissed. 29 Numerous courts and tribunals in Australia have found that the concept of constructive dismissal, as explained by Lord Denning in the foregoing paragraph, is applicable when considering the capacity of an employee who has resigned from his/her employment following the employer's repudiation of the contract to access Commonwealth and State legislative schemes which govern unfair dismissal from employment (see e.g. Woolworths (SA) Pty Ltd v Russian (1996) 66 IR 13; Advertiser Newspapers v Industrial Relations Commission of South Australia (1999) 90 IR 211; Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231). These decisions are best characterised as the 'repudiatory breach' cases. 30 There is a second strand of Australian constructive dismissal decisions that are sometimes referred to as the 'forced resignation' cases. They involve instances in which an employee has resigned from his/her employment under duress from the employer. They differ from the 'repudiatory breach' cases because courts and tribunals have been prepared to find that an employee who resigned under duress was constructively dismissed without necessarily finding that the employer had breached an essential term of the contract of employment, or had otherwise repudiated the contract. 31 One of the leading authorities in the 'forced resignation' strand of cases is the decision of the Full Commission of the NSW Industrial Relations Commission in Allison v Bega Valley Council (1995) 63 IR 68. In that case, an employee resigned after his employer had informed him that he could resign instead of having his alleged dishonesty referred to the police. A central issue was whether the employee had access to statutory unfair dismissal laws. In the context of finding that the employee was able to claim that he had been unfairly dismissed the Full Bench of the Commission stated at p 72: There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment. Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?… Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed. 32 Whilst the decision in Allison ultimately turned on the finding that it was a 'forced resignation' case, there is clearly some overlap in the passages cited with the reasoning employed in the 'repudiatory breach' cases such as Western Excavating. Nevertheless, Allison goes further than Western Excavating , for in Allison the NSW Industrial Relations Commission held that an employee could be regarded as having been constructively dismissed even though the employer had not committed a repudiatory breach of contract. The key issue in Allison was whether the employee resigned in response to pressure exerted by the employer. 33 In the present case, the Tribunal cited with approval a paragraph from the earlier Appeal Panel decision in Commissioner of Police, NSW Police Service v Mooney ([2001] NSWADTAP 20 at [15]), in which most of the passage that we have quoted from Allison was quoted in explanation of the concept of constructive dismissal. The Tribunal proceeded to deal with the case as one of 'forced resignation' constructive dismissal. We believe, however, that it is better cast as one of 'repudiatory breach'. In some instances, 'forced resignation' cases may fall beyond the boundaries of that which constitutes "dismissal" for the purposes of s 49D(2)(c) of the AD Act, since to say that an employee was dismissed because he/she resigned in response to pressure from the employer may require reading too much into the actual statutory language. But this is a matter which need not be conclusively determined in this case. The reason is that, as we have already noted, the Commissioner did not challenge the Tribunal's finding that the concept of constructive dismissal falls within s 49D(2)(c), nor did he take issue with the manner in which the Tribunal gave meaning to that concept. 34 The evidence did not disclose that Mr Mooney was forced to resign in the sense that he was advised to resign or face dismissal. Nor did it disclose that he was advised to resign or suffer the consequences of a possible adverse event as in Allison. What the evidence did permit the Tribunal to determine was that Mr Mooney elected to resign after the Commissioner had acted in a way that amounted to a repudiation of his contract of employment. Consequently, bearing in mind that this part of the case turns upon the meaning of the term "dismissal" in s 49D(2)(c) of the AD Act, we believe it preferable to characterise the case as one of 'repudiatory breach'. Having said that, the evidence clearly permitted the Tribunal to find that this was a 'forced resignation' case if the reasoning in Allison concerning resignation in response to pressure exerted by an employer governs the meaning of "dismissal" in the AD Act. 35 The relevant appeal grounds concerning the constructive dismissal finding were identified at [18] above. We propose to consider each of those appeal grounds in turn. 36 There appears to be considerable overlap between the Appeal Grounds numbered 4 and 16. Both refer to paragraph [48] of the Tribunal's decision. In effect the Commissioner's contention was that the Tribunal applied a subjective rather than an objective test when determining whether the Commissioner's conduct towards Mr Mooney constituted constructive dismissal. The law requires that the test be objective. The employer must engage in conduct which objectively amounts to breach of an essential term of the contract, or which otherwise, objectively, amounts to a repudiation of the contract before the employee may elect to terminate the contract and thereby regard him/herself as having been constructively dismissed. 37 We are satisfied that the Tribunal applied an objective test. The Commissioner has pointed to the fact that the Tribunal stated that Mr Mooney "was repeatedly given the impression" that his sick leave record was unsatisfactory in support of his argument that the Tribunal incorrectly applied a subjective test. We do not accept the Commissioner's construction of the Tribunal's language. When the relevant parts of the Tribunal's decision are read as a whole it is readily apparent that the Tribunal was well aware of the fact that in order to find that Mr Mooney was constructively dismissed it was necessary to find, objectively, that the Commissioner had breached an essential term of the contract of employment, or had otherwise engaged in conduct which amounted to a repudiation of his contract of employment with Mr Mooney. In paragraph [44], for instance, the Tribunal stated that Mr Mooney "justifiably interpreted" a letter from his employer as meaning that "his employment was threatened if his sick leave record remained 'unsatisfactory'". The expression "given the impression" is often used in everyday speech to mean a conclusion reached objectively and that is the manner in which it was employed by the Tribunal. There is no substance to either of these appeal grounds. 38 There is considerable overlap between Appeal Grounds numbered 7, 8 and 9, which deal with the Tribunal's findings concerning Mr Mooney's decision to terminate the contract of employment in response to the conduct of his supervisors concerning sick leave and his notice of resignation to the Commissioner. The substance of the Commissioner's argument appears to be that Mr Mooney gave the Commissioner one reason - age discrimination - for terminating the contract whereas the Tribunal ultimately decided that Mr Mooney had a different reason - discrimination on the ground of disability - for terminating the contract. 39 This argument involves a misunderstanding of the law governing constructive dismissal and of its roots in the general law of contract. It is unnecessary for an innocent party to a contract who elects to rescind the contract because of a repudiatory breach by the other party to be aware of the precise details of that breach and to notify the 'guilty' party of those details at the time the contract is terminated. The general principles of contract law are clearly explained by Seddon and Ellinghaus in the following passages: The law confers a right to terminate for breach, but not for any breach. Only a serious breach justifies the termination of a contract… Such a breach does not automatically terminate the contract; rather it confers an elective right on the innocent party. This means that an equivocal response to the breach, indicating that the contract is at an end, is required; this is sometimes referred to as 'acceptance' of the breach. Communication of an election to terminate is normally essential. A notice of termination which relies on a ground not justifying termination is ineffective. But a notice which specifies both a valid and invalid ground is not ineffective. Moreover, a party who has put forward an invalid ground for termination is not prevented thereafter from relying on a valid ground. (N Seddon and M Ellinghaus, Cheshire and Fifoot's Law of Contract (7th Australian edition), Butterworths, Sydney: 1997 at p 739) 40 The same principles apply in relation to termination of contracts of employment. In Concut Pty Ltd v Worrell [2000] HCA 64, Gleeson CJ, Gaudron and Gummow JJ stated at [29]: The proposition that the dismissal of an employee may be justified upon grounds on which the employer did not act and of which the employer was unaware when the employee was discharged is but an application of what, in Shepherd [ Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359] , Dixon J identified as a rule of general application with respect to the discharge of contract by breach. Kirby J made the same point when he stated at [51]: The particular misconduct of the employee, upon which the employer relied in this case, was not known to the employer at the time of the employee's dismissal. It was discovered later and relied upon at the trial. However, as a matter of law, it was certainly open to the employer to rely upon it. The question was not whether the employer was aware of grounds to justify the course which the employer adopted. It was whether such grounds and justification existed. 41 As is apparent, these statements in Concut were made with respect to conduct by an employee which justified an employer's action in discharging the contract of employment. The concept of constructive dismissal, however, is simply a descriptive term for the converse state of affairs, where a repudiatory breach of contract by an employer justifies action by the employee in discharging the contract. These statements, therefore, are equally applicable in cases such as the present, where it was found by the Tribunal that the employee had grounds for discharging the contract even though he may not have been aware of the precise nature or description of those grounds at the time he terminated the contract. 42 The Tribunal found that Mr Mooney terminated his contract of employment by writing a letter to the Commissioner, dated 21 July 1995, in which he relevantly stated: "Resulting from my age, I have been the subject of harassment and discrimination from Robert Campbell Clark with the result I am compelled to give this notice of my early resignation". Mr Mooney subsequently lodged a complaint with the President of the Anti-Discrimination Board alleging discrimination on the grounds of both age and disability. The Tribunal dismissed the claim of discrimination on the ground of age but found the claim of discrimination on the ground of disability substantiated. Thus, subject to the rider that discrimination on the ground of disability amounted to a repudiatory breach of Mr Mooney's contract of employment, the Tribunal's finding was confirmation of the fact that a ground for discharging his contract of employment existed at the time Mr Mooney submitted his letter of resignation. The fact that he referred to age rather than disability discrimination in that letter did not disbar him from later identifying disability discrimination as the Commissioner's breach of contract which justified discharge. 43 The decided cases do not explicitly identify how, in terms of the law governing contracts of employment, conduct by an employer which constitutes discrimination on the ground of disability amounts to a repudiatory breach of the contract. But such conduct may be characterised as a breach of the implied term of mutual trust and confidence. As Kirby J pointed out in Concut Pty Ltd v Worrell [2000] HCA 64 at [52]: "The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust". The implied term of trust and confidence, in so far as it applies to employers, was described by Lord Steyn in Malik v Bank of Credit & Commerce International SA (In liq) [1998] AC 20 at 45 as requiring an employer not to "without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee". 44 The High Court has not specifically identified the implied term of mutual trust and confidence as a term implied by law in all contracts of employment unless specifically excluded. But the Full Court of the Industrial Relations Court held in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 that there was ample authority for the implication of this term. There have been numerous Australian cases since Burazin in which the existence of this implied term has been accepted (see K Godfrey, "Contracts of Employment: Renaissance of the implied term of trust and confidence" (2003) 77 ALJR 764). 45 In many instances, discriminating against an employee on the ground of disability will constitute conduct which is likely to destroy or seriously damage the relationship of confidence and trust between an employer and an employee. In this case the discrimination against Mr Mooney on the ground of his disability took the form of placing him under pressure, over a sustained period of time, in relation to leave which he was quite entitled to take. In our judgment, this amounted to a breach of an implied term of the contract of employment between Mr Mooney and the Commissioner. Such conduct may be characterised as either a breach of an essential term of that contract or, otherwise, as a repudiatory breach of the contract. An employee is clearly entitled to expect as part of his/her contract of employment that the employer will not treat him/her in a way that constitutes a breach of anti-discrimination laws. 46 Thus, there is no substance to the argument that the Tribunal was in error in finding that Mr Mooney had been constructively dismissed, when the reason which he gave to the Commissioner in his letter of resignation for electing to terminate the contract of employment was not the precise ground found by the Tribunal to justify his action in discharging the contract. The Tribunal's finding in relation to discrimination on the ground of disability meant that a valid reason for discharging the contract existed in fact at the time Mr Mooney submitted his letter of resignation. The substance of Mr Mooney's concern about the conduct of his employer did not change over time. What did change was the legal characterisation of that conduct. Mr Mooney was concerned that he had been "harassed" by his supervisors in relation to his sick leave when he believed he had taken leave to which he was lawfully entitled. The Commissioner ultimately conceded that his own staff made mistakes in calculating Mr Mooney's entitlements. These mistakes had an effect upon the manner in which Mr Mooney's supervisors spoke to him and wrote to him about sick leave. The Tribunal ultimately found that this conduct constituted unlawful discrimination on the ground of disability. It is not relevant that Mr Mooney initially cast the conduct as discrimination on the ground of age. 47 Appeal Ground No 10 was that the Tribunal "erred by misconstruing the Appellant's sick leave policy as being a definitive document as though it were equivalent to legislation". This ground was not addressed in the Commissioner's written submissions. Ms Winters did not develop any arguments during oral submissions which enhanced our understanding of the nature of the legal error alleged. In his written submissions Mr Beckett argued that this ground should be treated as having been abandoned. 48 The Tribunal relied upon the Commissioner's sick leave policy in order (a) to ascertain Mr Mooney's sick leave entitlements and (b) to determine whether, as Mr Mooney claimed, his supervisors had taken action against him in relation to his sick leave, such as the requirement to submit medical certificates for all sick leave days, which was not authorised by that policy. The definitive nature of the sick leave policy was not an issue before the Tribunal. There was no evidence concerning the existence of other provisions governing sick leave, such as awards or enterprise agreements. It was open to the Commissioner to lead such evidence and to argue that the Tribunal should have looked beyond the sick leave policy. But in the absence of that evidence, the Tribunal was entitled to treat the sick leave policy in the manner in which it did. 49 Appeal Grounds numbered 11 and 13 involve a misunderstanding of the language employed by the Tribunal in its decision. The Commissioner argued, in effect, that the Tribunal took into consideration parts of Mr Mooney's affidavit that were objected to by counsel at the hearing and ruled inadmissible by the Tribunal. Reliance is placed upon the statement by the Tribunal at paragraph [48] of its reasons that: "We are satisfied on the basis of all Mr Mooney's evidence (none of which was challenged) that the conduct of the respondent's employees put pressure on Mr Mooney to resign". We take the reference to none of Mr Mooney's evidence being challenged as another way of saying that he was not cross-examined. The Tribunal noted at paragraph [19] of its reasons that objection was successfully taken to parts of the affidavits of both Mr Mooney and Mr Wright. This is an acknowledgement that parts of Mr Mooney's evidence were ruled inadmissible. There is nothing in the Tribunal's reasons which indicates that it took into consideration those parts of Mr Mooney's affidavit which were rejected. There is no substance to the Appeal Grounds numbered 11 and 13. 50 There is considerable overlap between Appeal Grounds numbered 14, 17 and 18. Together they challenge the Tribunal's findings concerning constructive dismissal. The Commissioner has argued that the evidence did not permit the Tribunal to find that the conduct of Mr Mooney's supervisors put pressure on him to resign, or that his resignation was not freely given or that there was a desire by his supervisors that his resignation be forthcoming. But for the reasons given at [33] and [34] above, there was no need for the Tribunal to have made any of these findings in order to reach the conclusion that Mr Mooney was constructively dismissed. Whether Mr Mooney was pressured to resign, did so unwillingly, or did so in response to a desire by his supervisors that he resign was of no relevance to the finding, open to the Tribunal, that the Commissioner engaged in a repudiatory breach of the contract of employment which thereby permitted Mr Mooney to discharge the contract and regard himself as having been constructively dismissed. 51 That is not the way, however, in which the Tribunal determined that Mr Mooney had been constructively dismissed. In our opinion it was open to the Tribunal to find, as matters of fact, that Mr Mooney's supervisors put pressure on him to resign, that his resignation was not freely given and that there was a desire by his supervisors that he resign. In each instance the finding of fact could be made by inference from the evidence concerning Mr Mooney's dealings with Inspector Clark and various members of the Personnel Branch between September 1994 and July 1995. The Commissioner had appropriate notice of the manner in which Mr Mooney put his case, yet chose not to lead any evidence to rebut the inferences which the Tribunal was asked to draw about the intentions of Mr Mooney's supervisors. Also, the Commissioner did not cross-examine Mr Mooney about his own state of mind at the time he resigned. For these reasons, we reject these three Appeal Grounds. 52 The final Appeal Ground in this part of the case, ground 21A, involves a misunderstanding of the concept of constructive dismissal. The Commissioner has claimed that the Tribunal erred by failing to consider the offer made by him that Mr Mooney not proceed with his resignation pending the outcome of an Internal Affairs investigation. But once Mr Mooney elected to discharge his contract of employment in response to the conduct of the Commissioner which amounted to a repudiatory breach of that contract, he was constructively dismissed. It was simply too late for any offer by the Commissioner to undo the earlier breach of contract. Any offer by the Commissioner that Mr Mooney should not proceed with his resignation was a matter of relevance only to the measure of damages which could be claimed by Mr Mooney. The Tribunal's order for the payment of damages was not challenged in this appeal. There is no substance to the Appeal Ground numbered 21A. The appeal grounds relating to the finding of discrimination on the ground of disability 53 The following appeal grounds appear to challenge the Tribunal's decision that in constructively dismissing Mr Mooney the Commissioner discriminated against him on the ground of disability: 2. The Tribunal erred in determining that the tendency to take substantial amounts of sick leave is a characteristic generally appertaining to people with the same or substantially the same disabilities as the Complainant (paragraph 58). 3. The Tribunal misconstrued s 49B of the Anti-Discrimination Act and considered the Respondent's combination of disabilities (paragraph 53). The Tribunal failed to determine whether or not on the ground of any one or more of the claimed disabilities the Appellant treated the Respondent less favourably than in the same circumstances, or in circumstances which are not materially different, the Appellant treats or would treat a person who does not have that claimed disability. 5. The Tribunal erred in determining that the Complainant had a tendency to take substantial amounts of sick leave at least during the period 1992 to 1995, when the sick leave policy was in place (paragraph 55). 6. The "tendency to take substantial amounts of sick leave" was not a characteristic that applied to the Respondent as at 12 July 1995, so the conclusion that there was direct disability discrimination based upon this characteristic was an error of law. 12. The Tribunal erred by taking into consideration evidence relating to reviews of the Respondent's sick leave absences, when those reviews were found to have been justified (paragraphs 48, 69). 19. The Tribunal failed to properly consider the nature of the work performed by the State Licensing Investigation Command, and the consequences of not having an Accountant available to perform the essential functions of the position occupied by the respondent (paragraphs 28 and 29). 20. The Tribunal erred in concluding that the requirement to provided (sic) medical certificates after November 1994, being counselled and warned of the consequences of a continuing "unsatisfactory" sick leave record, was "on the ground of" the Respondent's "tendency to take substantial amounts of sick leave" (paragraph 74). 21. The Tribunal erred by referring to all counselling about the Respondent's "unsatisfactory" sick leave record, when it had previously found that the counselling in May 1993 and March 1994 was justified (paragraphs 69, 71). 54 Appeal Ground No 2 requires consideration of s 49B(2) of the AD Act. This provides that, for the purposes of determining a complaint of direct discrimination on the ground of disability pursuant to s 49B(1)(a), "something is done on the ground of a person's disability if it is done on the ground of a person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability". 55 The so-called 'characteristics extension' is found in all of the sections in the AD Act which define discrimination on the various grounds covered by the Act. It has received surprisingly little attention in the case law. The effect of the 'characteristics extension' is to broaden or enlarge the range of conduct which may constitute direct discrimination. In the context of direct discrimination on the ground of disability, s 49B(2) declares that unlawful conduct may occur when (1) it is done on the ground of a person's (the victim's) disability, or (2) it is done on the ground of a characteristic that appertains generally to people who have the victim's disability, or (3) it is done on the ground of a characteristic that is generally imputed to people who have the victim's disability. Various provisions in the AD Act, such as ss 49B(3) and 24(1B), deem that certain characteristics appertain generally to some people who are protected by the Act. Broadly phrased provisions, such as s 49B(2), permit the Tribunal to find in an individual case that a particular characteristic is one which appertains generally to, or is generally imputed to, people with the same disability as the alleged victim. 56 McHugh and Kirby JJ considered the purpose of the 'characteristics extension' provisions in anti-discrimination legislation in Purvis v NSW [2003] HCA 62. While these two justices formed the minority in that case, there is nothing in their comments about these provisions that is at odds with the majority judgments. They stated at [130]: Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti-discrimination legislation is not evaded by using such characteristics as "proxies" for discriminating on the basic grounds covered by the legislation. 57 A threshold issue for the Tribunal to determine in any case where the 'characteristics extension' is employed is whether a particular matter is a characteristic which appertains generally to, or is generally imputed to, people who have the same attribute as the alleged victim, in this instance, disability. This threshold issue is a question of fact in each case (see Walker v State of NSW [2003] NSWADT 13 at [42 - 46]). While the Tribunal is not bound by the rules of evidence, it must, like courts, make findings of fact based on logically probative evidence. In many cases it will be necessary for the applicant to lead evidence, often from experts, in order to permit the Tribunal to find that a particular matter is a characteristic that appertains generally to, or is generally imputed to, people with the attribute in question. It is, of course, open to the respondent to lead evidence which supports a contrary conclusion. 58 In this case, the Tribunal found that a characteristic that appertains generally to people with Mr Mooney's range of disabilities was "a tendency to require substantial amounts of sick leave". There was no evidence which supported that finding, apart from the evidence concerning the amount of sick leave taken by Mr Mooney. The Tribunal noted this lack of evidence at [58] of its reasons. However, the Tribunal, like courts, does not require evidence when it makes findings about matters of common knowledge. Before making its finding about the relevant characteristic in this case the Tribunal considered the 'common knowledge' finding of a characteristic of persons with a disability by Barr J in State Transit Authority v Sloey [1999] NSWSC 47. In that case His Honour found, as a matter of common knowledge, that a characteristic which appertains generally to people with heart conditions is that they have bypass surgery. 59 In our opinion, it was open to the Tribunal in this case to make, as a matter of common knowledge, the finding that it made: namely, that it is a characteristic of people with Mr Mooney's range of disabilities that they have a tendency to require substantial amounts of sick leave. A specialist tribunal, such as the Equal Opportunity Division of this Tribunal, may be reasonably expected to have a broad common knowledge of the characteristics of the people who fall within its jurisdiction. While reasonable people may differ about the Tribunal's finding concerning the particular characteristic in this case, that finding did not fall beyond the range of common knowledge conclusions open to the Tribunal. The claim concerning the existence of this particular characteristic was formulated and developed by Mr Mooney's lawyers. It was appropriately drawn to the attention of the Commissioner in the pleadings, in the manner in which Mr Mooney presented his case and in counsel's submissions. The Commissioner had a fair opportunity to respond to this aspect of Mr Mooney's case. 60 The Appeal Grounds disclose a number of challenges to the manner in which the Tribunal relied upon the 'characteristics extension' to conclude that the Commissioner discriminated against Mr Mooney on the ground of disability when it constructively dismissed him. In Appeal Ground No 3, the Commissioner challenged the Tribunal's finding that it could rely upon Mr Mooney's range of disabilities as being the source of the characteristic upon which the direct discrimination ultimately turned. It was the Commissioner's contention that "the Act is framed in terms of a single disability". Consequently, it was argued, the Tribunal should have considered whether Mr Mooney received less favourable treatment on the basis of any one of his particular disabilities. This submission involves a misunderstanding of the statutory definition of "disability" and of the operation of the 'characteristics extension' in s 49B(2) of the AD Act. 61 The term "disability" is defined in s 4 of the AD Act. It is a legal definition of disability rather than a list of conditions, diseases, illnesses or injuries which may be used in a medical or allied health context. The definition reflects the approach to disability taken in significant relevant international instruments, such as the Declaration on the Rights of Disabled Persons (see Schedule 5 to the Human Rights and Equal Opportunity Act 1986 (Cth)). In that Declaration the definition of "disabled person" centres on people who, as a result of "deficiency", may have a limited capacity to access by themselves "the necessities of a normal individual and/or social life". Whilst some of the language used in that definition may be dated, it is clear that the definition is not intended to be a categorisation which turns upon medical-style illness, injury or disease classifications. This is also the approach taken to "disability" in the AD Act. The definition in s 4 of that Act reads: disability means: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affect's a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 62 Upon reflection it is quite apparent that one medical condition, disease, illness or injury may fall within more than one paragraph in the AD Act definition of "disability". For example, a person who has sustained quadriplegia as a result of trauma would have a "disability" which falls within both paragraphs (a) and (c) of the statutory definition. In terms of the AD Act definition the person's "disability" is not the medical condition of spinal cord injury resulting in quadriplegia. The "disability" is, in terms of paragraph (a) of the statutory definition, the loss of use of the person's arms and legs and, in terms of paragraph (c) of the definition, the malfunction of the person's spine, arms and legs. Common experience suggests that it is a characteristic of those disabilities, rather than the disabilities themselves, which is likely to be the cause of most discrimination faced by such a person. It is a characteristic that appertains generally to people with the disabilities under consideration to use a wheel chair for the purposes of mobility. Inability to obtain access to various workplaces and public facilities in a wheel chair is likely to be a reason for such people receiving less favourable treatment than those people who are able to walk. 63 This example illustrates that it would be nonsense to suggest that a condition which falls within two or more paragraphs of the statutory definition may not produce a single characteristic. But this is what the Commissioner has argued. There is nothing in the text of the legislation which supports this argument other than the use of language in the singular form. As s 8(b) of the Interpretation Act 1987 makes clear, unless there is a contrary intention, "a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form". There is no contrary intention in the AD Act. It is clear, in our opinion, that it is the intention of the legislation that multiple disabilities can produce one characteristic. That characteristic should not be permitted to become, in the language of McHugh and Kirby JJ in Purvis v NSW [2003] HCA 62, the proxy for discriminating against a person the ground of his/her many disabilities. 64 It is also a mistake to suggest, as the Commissioner has in Appeal Ground No 3, that the Tribunal should have individually assessed each of Mr Mooney's medical conditions, as opposed to his statutory disabilities, and considered whether the Commissioner may have treated him less favourably than others because he had, for example, gall bladder disease or suffered from migraines. If the case had turned upon the definition of direct discrimination in s 49B(1)(a) alone, it was the task of the Tribunal to determine whether the Commissioner had treated Mr Mooney less favourably than other similarly placed employees on the ground of one or more of his statutory disabilities. To take the example of Mr Mooney's gall bladder disease, which falls within both paragraphs (a) and (c) of the statutory definition, the Tribunal's task would have been to determine, first, whether the Commissioner had treated Mr Mooney less favourably than other similarly placed employees who did not have the loss of bodily function or malfunction associated with gall bladder disease and, secondly, whether any less favourable treatment occurred because of Mr Mooney's loss of bodily function, or the malfunction of his body, associated with gall bladder disease. 65 But this is not how Mr Mooney's complaint was argued or determined by the Tribunal. He relied upon the 'characteristics extension' and the Tribunal decided the case upon this basis. In so deciding the Tribunal correctly interpreted and applied the relevant parts of the statutory definition of discrimination on the ground of disability. The effect of s 49B(2) - the 'characteristics extension' - is to change the questions which the Tribunal must ask and answer when undertaking both the differential treatment and the causation analysis in a direct discrimination case (see Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5). The characteristic, or the proxy, becomes the point of comparison. The Tribunal was required to compare, as it did, the Commissioner's treatment of Mr Mooney with the Commissioner's treatment of similarly placed employees who did not have the relevant characteristic, the tendency to require substantial amounts of sick leave. If that comparison produced a finding of less favourable treatment the Tribunal was also required to consider, as it did, whether that characteristic was a ground or reason for the less favourable treatment of Mr Mooney. This analysis, which was correctly undertaken by the Tribunal, produced the finding that the Commissioner had discriminated against Mr Mooney on the ground of a characteristic that appertains generally to people with his disabilities. There was no error in the way in which the Tribunal interpreted and applied the relevant portions of the statutory definition of discrimination on the ground of disability. 66 Appeal Grounds numbered 5 and 6, which are related, also involve a misunderstanding of the manner in which the 'characteristics extension' in s 49B(2) operates. Both appeal grounds contain the assertion that at particular dates Mr Mooney did not in fact have the tendency to require substantial amounts of sick leave. Accordingly, it was argued, the Commissioner could not have discriminated against Mr Mooney on the basis of that characteristic if in fact he did not possess it at particular relevant times. However, whether a person actually has the characteristic which it is claimed was the ground for the unlawful discrimination is irrelevant. It is the belief in the mind of the alleged discriminator and the effect which that belief has on the person's conduct towards the alleged victim that are crucial. The existence of the belief and the conduct which is actuated by that belief together form the basis of the unlawful discrimination. If Mr Mooney's supervisors believed that as a result of his disabilities he had a tendency to require substantial amounts of sick leave, and if that belief influenced their conduct towards him, then it was open to the Tribunal to conclude that the Commissioner had discriminated against Mr Mooney on the ground of a characteristic that appertains generally to people with his disabilities even if he did not actually possess that characteristic at all, or at all relevant times. 67 Consequently, the key issue was not whether in fact Mr Mooney had the characteristic; it was whether in fact the Commissioner believed he had the characteristic and treated him less favourably than others because of that belief. There was a considerable body of evidence, such as Mr Mooney's account of what was said to him at counselling sessions and the correspondence sent to him by his supervisors, which permitted the Tribunal to draw the inference that at relevant times Mr Mooney's supervisors held the belief that as a result of his disabilities Mr Mooney had a tendency to require substantial amounts of sick leave, and that the supervisors' conduct towards him was actuated or influenced by that belief. There is no substance to the Appeal Grounds numbered 5 and 6. 68 This conclusion is reinforced by the terms of s 49A of the AD Act which provides, in effect, that it is unlawful to discriminate against a person on the ground of disability when it is believed that the person is, or was, or will be disabled. Whether the person actually is, or was, or will be disabled is not relevant. It is the belief and the actions of the respondent that are decisive. Whilst s 49A is concerned with discrimination on the ground of disability, rather than discrimination on the ground of a characteristic of one or more disabilities, the significance of the section for present purposes is that it supports the conclusion that the key issue in this part of the case was whether the Commissioner believed that Mr Mooney had the characteristic in question and treated him less favourably than others because of that belief. Whether Mr Mooney actually had the characteristic at the crucial period was not decisive. 69 However, it was open to the Tribunal to conclude that Mr Mooney did in fact have the characteristic attributed to him at all relevant times. The Tribunal was careful in the way in which it framed the characteristic. It was described as a tendency to require substantial amounts of sick leave. If the later years of Mr Mooney's employment with the Commissioner are viewed as a whole he did in fact have a tendency to require substantial amounts of sick leave. There is no substance to the Appeal Grounds numbered 5 and 6. 70 Appeal Grounds numbered 12 and 21 involve a misreading of the Tribunal's decision. In effect the contention is that the Tribunal impermissibly took certain events into account when reaching its decision that the Commissioner had discriminated against Mr Mooney on the ground of disability. The Commissioner argued in Appeal Ground No 12 that the Tribunal erred by "taking into consideration evidence relating to reviews of the Respondent's sick leave absences, when those reviews were found to have been justified (paragraphs 48, 69)". In Appeal Ground No 21 it is alleged "the Tribunal erred by referring to all counselling about the Respondent's 'unsatisfactory' sick leave record, when it had previously found that the counselling in May 1993 and March 1994 was justified (paragraphs 69,71)". 71 It is apparent from the reference to paragraph [69] in the Tribunal's decision that the "reviews" referred to in Appeal Ground No 12 were those that took place in May 1993 and March 1994. In paragraph [69] of its decision the Tribunal stated that these reviews were conducted "justifiably". The Tribunal did not take these reviews into account in reaching its decision for it concluded paragraph [69] by stating that "the applicant has not established any 'less favourable treatment' in relation to these episodes and this aspect of the complaint is dismissed". Similarly, it is quite apparent from reading paragraphs [69], [70] and [71] of the Tribunal's decision together that the references in paragraph [71] to Mr Mooney being "counselled and explicitly warned on at least three occasions about his 'unsatisfactory' sick leave record" related to the period from November 1994 to July 1995. There is no merit to these Appeal Grounds. 72 Appeal Ground No 19, which was that "the Tribunal failed to properly consider the nature of the work performed by the State Licensing Investigation Command, and the consequences of not having an Accountant available to perform the essential functions of the position occupied by the respondent", appears to raise a statutory defence that was not argued by the Commissioner before the Tribunal. Section 49D(4) of the AD Act renders lawful action that would otherwise be unlawful. An employer may lawfully dismiss an employee on the ground of disability when the employee is unable to perform the inherent requirements of the job, or is unable to perform those requirements without services or facilities which would impose an unjustifiable hardship on the employer to provide. There is a substantial body of case law which governs the operation of this complex statutory defence to a complaint of disability discrimination (see e.g. X v Commonwealth (2000) 200 CLR 177). 73 It may have been open to the Commissioner to argue that Mr Mooney was unable to perform the inherent requirements of his job due to the amount of sick leave he was obliged to take. However, the Commissioner did not raise this defence at the hearing before the Tribunal and it is simply too late to argue that the defence was applicable. Further, there was no evidence that would have permitted the Tribunal to find that the actions of the Commissioner fell within s 49D(4) of the AD Act. 74 The final appeal ground effectively challenged the Tribunal's finding in relation to what is often referred to as "causation" in a direct discrimination case (see Purvis v NSW [2003] HCA 62; Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5). Causation is the shorthand term given to that part of an inquiry in a direct discrimination which is concerned with a search for the grounds or reasons for the alleged victim receiving less favourable treatment than others in a comparative context. In Appeal Ground No 20 the Commissioner alleged that the Tribunal erred by concluding that "the requirement to provide medical certificates after November 1994, being counselled and warned of the consequences of a continuing 'unsatisfactory', was 'on the ground of' the Respondent's 'tendency to take substantial amounts of sick leave' (paragraph 74)". 75 The finding by the Tribunal that the Commissioner's relevant conduct towards Mr Mooney after November 1994 was actuated by his belief that Mr Mooney possessed the characteristic of a tendency to take substantial amounts of sick leave was a finding of fact open to the Tribunal. That finding, which was made by inference drawn from the documents Mr Mooney received from his supervisors and from his evidence concerning conversations with his supervisors, was supported by probative evidence. It was made logically. The Commissioner argued that he acted as he did, through Mr Mooney's supervisors, because of his interest in ensuring Mr Mooney's health. That was also a finding of fact open to the Tribunal. There was very little evidence which supported that finding. Ultimately the Tribunal preferred, for reasons which it articulated, the finding urged upon it by Mr Mooney. There is no substance to this Appeal Ground. 76 Mr Mooney did not make an application for the costs of the appeal. Decision and Order 77 The decision and order of the Tribunal is that the appeal is dismissed.

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