ELV v Leaders In Real Estate Pty Limited [2021] NSWCATAD 135 | Case summary

NCAT Administrative and Equal Opportunity|2019-12-01

REASONS FOR DECISION

ELV is the applicant in these proceedings. Her application to anonymize her name was granted prior to this hearing, in a decision made by Senior Member C A Ludlow on 19 October 2021. She will therefore be referred to as ELV or 'the applicant' in this decision, including in places where an email has been sent to her, which used her first name, or her name was used in a telephone conversation that has been quoted in this decision. Instead, 'ELV' will be used to refer to the applicant.
The complaint is brought against Leaders In Real Estate Pty Limited, which describes itself as a "boutique media company," alleging that the company discriminated against her on the grounds of a disability by dismissing her from employment. In these Reasons for Decision, Leaders In Real Estate Pty Limited will be referred to as 'the respondent' or 'LRE".

Procedural matters

During the proceedings each party was unrepresented. Each party filed and served documents largely in accordance with the timetable, as directed. At the hearing, the applicant represented herself and Mr Christopher Baynes represented the respondent. Each party presented its case and the applicant cross- examined two witnesses of the respondent.

What is required in order to establish discrimination on the grounds of disability?

Section 4 of the ADA defines the term 'disability' as follows: "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 affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour."
Section 49A provides as follows: "A reference in this Part to a person's disability is a reference to a disability - (a) That a person has, or (b) That a person is thought to have (whether or not the person in fact has the disability), or (c) That a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) That a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
Section 49B provides that: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability - (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular 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.
Section 49D provides that: (1) It is unlawful for an employer to discriminate against a person on the ground of disability-- (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of disability-- (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment-- (a) for the purposes of a private household, or (b) where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5, or (c) by a private educational authority. (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability-- (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. (5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
Section 4A of the ADA provides that: If - (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.
In order to establish a claim of discrimination, the applicant needs to establish that she was in fact as treated less favourably than others in the same or similar position (sometimes referred to as 'differential treatment') and that at least one of the reasons she was treated less favourably was "on the grounds of" her disability (sometimes referred to as 'the causation question').
Dutt v Central Coast Area Health Service [2002] NSWADT 133 involved alleged racial discrimination, not alleged disability discrimination as in this case, but the principles set out in Dutt have long been applied in interpreting the provisions of the Anti-Discrimination Act, 1977.
In Dutt, at [60] - [65], the Tribunal discusses how the question of whether or not there has been "less favourable treatment" of the applicant "than others in the same or similar positon" and states that: "It is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently."
The words "on the grounds of" have been paraphrased as "because of", "due to," "a real" reason, a "genuine" reason or "true reason" for the treatment alleged to have been discriminatory (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
A person may be treated in a discriminatory fashion on the grounds of a disability because the person has or had a disability, is thought to have had or to presently have a disability, or will have in the future, or is thought to have in the future; or because a person exhibits a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. Where proven, each of those constitute direct disability discrimination.
A person may also experience indirect disability discrimination as set out in s49B(1)(b) of the ADA, if a requirement operates differentially on a person with that disability as compared with a person who does not have that disability, perceived disability or characteristic of that disability, that will also constitute indirect disability discrimination. That was not alleged in this case.
The applicant bears the onus of proof, on the balance of probabilities, that she or he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to the disability (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56].
If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered (Dutt v Central Coast Area Health Service [2002] NSW ADT 133 at [59] - [65]; Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].)
It is not the case that because a person has a disability and experiences something he or she perceives as "adverse" to that person, that the conduct is discriminatory simply because the person has a disability. The person needs to prove on the civil standard, which is the balance of probabilities, that the conduct impugned occurred "on the ground of", "due to" or "because of" the disability of the person. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned was the disability of the person, actual or imputed.
If a person exhibits conduct that would be unacceptable if the person did not have a disability, the fact that the person has a disability does not, of itself, render the conduct discriminatory ( Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92.)
The fact that a person has, had, may have or be thought to have a disability is not sufficient to prove discrimination on the grounds of disability, as indicated above. It is also necessary to show that there was differential treatment and that a reason, or the reason, for the treatment was the disability (either actual or imputed) ('the causation question'), which is dealt with below.

Contract

It was common ground between the parties that the applicant executed a contract of employment document on 31 March 2020. She began work with the Respondent on 6 April 2020. Her contract provided that the duties she would perform were those of a journalist. They were outlined in a "roles and responsibilities" document that she received on commencement of her employment.
The contract provided that whilst normal hours of work were 8.30 to 5:30 PM Monday to Friday, she may be required to work outside normal business hours as may be reasonably required. She was responsible to Ms Lauren Broomham, Editor and ultimately to the Director of the company, Mr Christopher Baynes. Her primary workplace was said to be the office at Balmain East, New South Wales, but due to Covid-19 she, Mr Baynes, and her immediate supervisor, Ms Broomham, worked from home.
The contract provided for a probationary period of six months, during which LRE would monitor her work performance to determine whether it met the company requirements and she would also have a similar opportunity to assess whether the employment was suitable for her. The contract also provided as follows: "During the probationary period, your employment may be terminated by either party giving one weeks' notice, or in the case of the company, payment in lieu."
The contract also provided that the that the Applicant would be entitled to 10 working days paid personal leave during each year of her employment, including carer's leave, parental leave and compassionate leave. It did not state that she had to work a full year before becoming entitled to take leave.

Events in the Workplace

The applicant commenced work with the respondent on 6 April 2020, during the Covid-19 lockdown, so work was undertaken at home, with email and zoom communication between the applicant, her immediate supervisor Ms Broomham and Mr Baynes, Director of LRE.
It was common ground between the parties that during the first 4 days of her employment (Monday to Thursday before Easter, which will be referred to as "the first week" of her employment, with later weeks referred to as "the second week" and "the third week"), the applicant spent considerable time with Mr Baynes, briefing her by telephone (due to Covid 19 restrictions) on various aspects of the business.
In his evidence Mr Baynes stated that in the first four days of ELV's employment, 6-9 April 2020, he spent 6 to 8 hours on the telephone with ELV discussing the retirement villages and aged sector and consolidating his instructions to her. He stated that they were different styles of writing required for different publications and that he gave ELV examples of editorials to assist her.
During the first week of her employment the applicant was also producing work for the respondent. Emails during that time that were in evidence indicate that the work was edited. An email from Mr Baynes on 6 April 2020 indicated that one story the applicant had written had been amended. The extent of the amending and editing was unclear.
The applicant submitted that it could reasonably expected that her work would be amended, particularly in the first week of her employment, and that this was a normal part of a journalist's job. Emails also indicate that when submitting a story the applicant said "happy to edit as you see fit".
In that first week she also received praise for some work she had done with Mr Baynes stating in relation to one article "9 out of 10" and Ms Broomham also providing positive feedback.
In relation to another piece of work in the first week of her employment, it appears that Mr Baynes wanted the applicant to transcribe material, but may not have explained this well, so she wrote a story about it. It was not what he wanted. So that this was not "wasted" it was agreed that she could submit the story to an external source. Mr Baynes said in cross examination that LRE did not particularly care whether the story was submitted elsewhere, but that he was content to go along with the applicant in relation to this.
On Monday 13 April, 2020 (Easter Monday, not a working day) at 5:52 PM the applicant sent the following email: "Hi Chris I hope you've had a nice Easter break. I just wanted to give you the heads up that my father has passed away this weekend. I think it will do me good to work as normal, but I may need to opt out of some video calls depending on how I go. Chat tomorrow." Thanks"
The applicant's evidence was that her father passed away overseas after being ill for some time.
On Tuesday 14 April 2020 the applicant had a video call with Mr Baynes and Ms Broomham, where she orally disclosed her father's passing, but she had her video camera switched off. Her initial recollection (as stated in the opening of her case) was that Mr Baynes and Ms Broomham had seen her cry on that occasion but in cross examination, by her, of Mr Baynes, he reminded her that her video camera had been off and said that therefore he had never seen her cry. She accepted that. Mr Baynes accepted that she had been teary, "crying gently" in that call, which he said was apparent to him even though the video was off. The applicant pointed out that before Anti-Discrimination NSW Mr Baynes had not agreed that she had cried during that call.
ELV put to Mr Baynes that if her video was off, he had no way to decipher the extent of her crying. His response was to the effect that if it possible to identify the difference between crying gently versus sobbing or a highly emotional presentation.
The evidence of Mr Baynes was that the applicant's grief appeared to be grief that would normally be expected with a bereavement, but that he did not perceive that she had a mental illness. The applicant explicitly put to him that he perceived that she had a mental illness and he denied that this was the case.
Some hours after the video call on 14 April 2020, the applicant received a bouquet of flowers from Mr Baynes on behalf of LRE. She expressed her thanks and he sent the following email: "Hi ELV, Our pleasure, the passing of a life is significant. Best wishes from everyone. Chris".
Emails that were in evidence showed that the applicant told the respondent that she wish to work on as normal after the death of her father. In her opening statement at the hearing the applicant stated that she had told Mr Baynes "I'll be fine. I'll manage" and that she thought it would be better that she was working rather than not working. She also stated that either Mr Baynes or Ms Broomham had asked her: "Are you sure you are ok to work?" and that she had said: "Yes, I'll be fine."
At no stage did she ask for 'time out' or compassionate leave to grieve, or ask for any change in her duties apart from her email of 20 April 2020 where she said that she was having difficulty concentrating "as I am in a state of grief after losing my father". At that time, in that email she sought "short, sharp instructions - especially in writing so that I can refer back if necessary." She did not present any medical certificate or indicate that she was suffering any condition beyond 'normal 'grief at a bereavement.
At no stage during her employment did the applicant advise the respondent either verbally, by email or letter that she had been diagnosed with post-traumatic stress disorder or depression. During the cross examination she suggested that she had use the word 'traumatized' in relation to her condition but Mr Baynes denied that she had ever said that she was "traumatized" by her father's death, although he accepted that she was in a state of grief. The applicant did not refer to any specific conversation with Mr Baynes or Ms Broomham in which she alleged that she said she was "traumatised".

Evidence regarding Disability

In her Complaint to the Anti-Discrimination Board, ELV states that: "It is my firm belief that I was dismissed on the grounds of my mental health issues (trauma, grief and related symptoms) and that the dismissal thereby constitutes a breach of General Protection laws under the Fair Work Act 2009 - specifically discrimination on grounds of mental health. I firmly believe that Baynes saw me as a potential burden to his company because of my mental health issues; that he no longer considered me worthy of my salary because of my mental health issues, that he made false assumptions about how long my mental health issues would persist (based on a stereotype of a depression and/or anxiety sufferer) and that he wanted to get rid of me quickly on these grounds."
In that description, there is no reference to Post Traumatic Stress Disorder as such. Additionally, it should be noted that in this jurisdiction, it is the Anti-Discrimination Act, (NSW) 1977 that is the applicable Act, not the Fair Work Act 2009.
In her opening submissions at the hearing, the applicant stated that she had "underlying PTSD" that was "severe". In her closing submissions she relied on the condition of PTSD as her disability and submitted that it is characterised by symptoms that include irritability (which could account for her being 'argumentative'), severe anxiety, fear, mistrust and not being able to detach from unwanted thoughts. Lack of attention to detail can be a side effect.
As proof that she had a disability at the relevant time, at the hearing, the applicant relied on a letter from Ms Tara Thomas, Clinical Psychologist, dated Thursday 17 September 2020, addressed to the applicant. The letter stated as follows: "ELV was referred to Brookdale psychology by Dr Janine Teasdale on a Mental Health Care Plan dated 17 June 2019, for the psychological treatment of presenting problems PTSD and depression. I have seen ELV at our rooms on 11 occasions between 16 July 2019 and 12 June 2020.
On 20 April 2020, ELV reported her Father had passed away 11 April 2020. ELV was teary throughout the session and reported feeling "regret" following his death. On 1 June 2020, ELV reported she had been dismissed from work, and was experiencing an increase in negative automatic thoughts and feelings of anger, as she believed the dismissal was unfair."
It was common ground that the applicant did not advise Mr Baynes, the Director of the respondent company, that she had visited Ms Thomas on 20 April and did not provide that certificate or any other medical certificate to him during her employment.
The applicant also relied on an academic paper "Traumatic Stress: Effects on the Brain" by J. Douglas Bremmer MD, published in Dialogues in Clinical Neuroscience Vol 8 No 4, 2006.
During the opening of her case ELV stated that she was hospitalised for PTSD "a few years ago" and was scheduled in 2018-2019 in a mental health facility and on medication for one year." She then ceased the medication. She stated that: "I thought I'd moved on from it [PTSD] but distressing events can trigger it." In her view, her pre-existing PTSD had been triggered by the death of her father.
Her case was that although she had not made her employer aware of the pre-existing condition, PTSD, she manifested the condition in the workplace and was treated less favourably than others without the condition, namely being dismissed, at least in part because of the condition.
The respondent accepted that the applicant may have had a disability as defined in the Anti-Discrimination Act but argued that the reasons for her dismissal did not include disability discrimination but that her dismissal was due to performance issues.
When she lodged the Complaint with Anti-Discrimination NSW the applicant did not refer to PTSD or depression directly, (referring to "my mental health issues trauma, grief and related symptoms"). Nor did she seek to formally amend her Complaint at any stage to claim those conditions. During the hearing she referred only to PTSD and not to depression. Nevertheless, in the interests of dealing with the real issues in dispute and given the concession by the respondent that, from the evidence of Ms Thomas, it appears that the applicant did have PTSD and depression, the Tribunal accepts, on the basis of the certificate from Ms Thomas, that at the time of the events the subject of this application, the applicant had PTSD and depression, which can constitute 'disabilities' as defined in s4 of the Anti-Discrimination Act, (NSW) 1977.
The Tribunal is required to determine whether at least one of the reasons ELV was dismissed was that she had a disability, namely a mental health condition, post- traumatic stress disorder or depression, or both conditions. If termination of her employment was due to performance issues and disability was not one of the reasons for her dismissal, then her case will not be made out.

Other Evidence of the Parties

The evidence of ELV was that she performed very well in her first four days of work, but that because of the bereavement, her behaviour changed: her affect became "flat" and showed "less energy", her voice was "monotonic", her concentration slipped and that any reduction in her performance between the first week and subsequent 2 weeks of her employment was due to a mental health condition, PTSD, as distinct from grief; that she was treated less favourably than others due to this condition and was dismissed because of it.
The evidence of Mr Baynes was that although he had been satisfied with her performance in the first four days of employment (which he said consisted mainly of 'education' although he conceded there was some production of 'work' for which he gave positive feedback), after that, when interaction "moved from education to work" ELV became argumentative, that although she sought direction she did not take it, but argued, mainly by telephone, about the directions given and kept highlighting her significant experience rather than accepting the direction given; that she failed to modify her style of writing sufficiently for the publications for which she was asked to write; that her work therefore required significant editing and re-writing, which was difficult against deadlines; that she was not sufficiently attentive to detail, as evidence by her using an outdated statistic in relation to Covid-19; that she failed to locate a "search function" on the website and argued about it; that he and Ms Broomham slowed in giving her work because they had to re-write what she wrote and it was quicker to do it themselves. He stated that in a small organisation, these matters were difficult for the respondent and, as she was in her probationary period and her performance was not as he had expected, her employment was terminated.
It was common ground between the parties that during the second week of her employment, from 14 April 2020, Mr Baynes was on the telephone to ELV less than he had been in the first week of her employment, but in her statement to the Anti-Discrimination Board, the applicant states that this was "at least once daily".
There was significant telephone and some zoom contact between ELV and Mr Baynes and/or Ms Broomham in the second and third weeks of ELV's employment. The Tribunal only has summaries from each of them as to what transpired in those calls. In cross examination Mr Baynes denied that ELV's voice in phone calls was 'monotonic'. Ms Broomham's evidence was that on the telephone she did not notice "much difference" in the applicant's presentation in the latter two weeks of her employment as compared with the first week, "except for the Monday". In the context of what occurred, she could reasonably be presumed to mean "Tuesday," being as the critical call where the applicant disclosed the death of her father over the weekend, it was agreed that the applicant was crying was on the first working day after Easter, which was Tuesday 14th, rather than Monday 13 April 2020.
Mr Baynes was asked by ELV in cross examination: "What was my demeanour like in zoom calls" and responded "I can't recall any significant change between week 1 and week 2, except for the teary call", where her video was off, on 14 April 2020, in other words the same call to which Ms Broomham referred.
On 20 April 2020 the applicant sent an email to Mr Baynes as follows: "Hi Chris, Thanks for clarifying. As mentioned last week I am having difficulty with concentration at the moment, as I am in a state of grief after losing my father. Short, sharp instructions are appreciated - especially in writing, so that I can refer back if necessary. No problems, I'll redo the story. Thanks"
The statement by the applicant in the 20 April email is the first written evidence of her indicating any difficulty in concentrating and seeking any accommodation from a usual pattern of interaction with her employer. Ms Broomham's evidence is that Mr Baynes conveyed that request from ELV to her and that she complied with it. What exactly was "mentioned" the previous week is not known with precision, although it is summarised by the applicant in her statement to the Anti-Discrimination Board. That statement was close in time to the events that are the subject of these proceedings, with her Complaint being received by Anti-Discrimination NSW on 27 May 2020.
During the hearing, and in her Complaint to Anti-Discrimination NSW, the applicant stated that Mr Baynes had spoken to her on the phone about stories and had sounded irritated with her and said to the words to the effect of: "ELV, if people don't click on our headlines, then people don't read our articles and we go out of business. Do you understand?" She says that this was said "in an angry and aggressive tone". He denied this but agreed that he was frustrated with her performance by that time and expressed some frustration.
During the hearing, the applicant asked questions of Mr Bayne regarding the "search function" on the website. In her questions to him she assumed that the search function had been removed. During the cross examination, Mr Baynes stated that it had not been removed and attempted to direct her attention to it. It appeared from her response that she had been looking at an incorrect site and had not realised that prior to the hearing.
During the hearing, the evidence of Mr Baynes was that he had become unhappy with the work that the applicant was producing and had expressed his frustration to her. He said that he did not shout but he was forceful in indicating that he was not happy with what she was producing.
On 20 April 2020 at 11.27 Mr Baynes sent an email to ELV stating: "Hi ELV. Here are my comments. Give me a call and we can talk through them."
On 20 April 2020 at 4:27 PM Mr Baynes sent an email to the applicant stating relevantly: "I have just sent these to Lauren to check and get into production. I have not looked at your stories that you have sent this morning because of the tightness of the schedule. Don't take offence at my edits etc. but we had to get things done. I have to finish my stories now as well so we can talk after I have finished and the issue is out."
On 21 April 2020, the applicant sent an email to Mr Baynes at 12:35 PM stating as follows: "Hi Chris, No problem at all, I don't take offence to friendly feedback. Just checking that you clicked on "review" and then "no markup" to see my final version? It looks as though some of the edits have been made to the unedited parts. Cheers ELV"
On 22 April 2020 at 2:18pm The applicant wrote: "Hi Chris, Lauren, Attached are my edits to the VM newsletter. Let me know what you think. I've mostly just edited out repetition, and improve the conciseness and flow. Also some grammatical corrections. I haven't altered style too much, besides toning down some of the language. Thanks ELV"
On 23 April there was a telephone discussion between Mr Baynes and the applicant where he terminated her employment. In her Complaint to Anti-Discrimination NSW, the reasons given by Mr Baynes for the termination are set out and do not refer, even tangentially, to a mental health disability. She sets out what she says occurred as follows: "18. On 23 April (my twelfth day of employment) I was dismissed over the phone by Baynes and told, "ELV we are going to have to discontinue your employment here. Your attention to detail is not up to scratch." 19. I did not know what Baynes was referring to when he cited my "lack of attention to detail" and so asked him for further explanation. He told me that I had used an outdated statistic in one of my articles (the article about coronavirus related unemployment in the USA - and the statistic I had used was just a few weeks old. In my google search results, I had not seen a more current statistic - possibly due to the nature of my google search algorithm. 20. Baynes also told me that he had been having to edit my work. This is despite the fact that journalists are (by definition) edited by Editors, that I was brand new to the role (and adjusting to the particular writing style of each of the firm's various publications), and despite the fact that he knew that I was grieving the loss of my father."
There is no reference in ELV's account of what Mr Baynes said to her on termination that mental health issues were a reason for the termination, although she thought she should have been given more latitude due to "grief" (latitude that she had not asked for and which she had expressly said she did not require, except as indicated in her email of 20 April 2020 and whatever she may have said to Mr Baynes the previous week).
The evidence of Mr Bayes as to the reasons for termination, as set out in LRE's statement filed on 26 November 2020, were as follows: "We ended our relationship with ELV because: • Her work was not to the standard or style we required; • Despite guidance the quality did not improve or adapt • She disagreed with our standards and assessments • Her work had to be redone repeatedly and against deadlines • She had been told at the outset that after COVID isolation she would be required to work at our Balmain office, which she had agreed, but soon after was saying it would be good if she could work from home longer term despite this being in her Letter of Appointment".
On 24 April the applicant sought that her by-line be removed from all articles, as she no longer wish to be affiliated with the publication and asked for a written letter of dismissal.

Evidence of Ms Broomham

Ms Broomham was the immediate supervisor of ELV. She was asked by ELV in cross examination what her overall impression of ELV had been in the first week of her employment. She responded to the effect that "I thought you were doing a reasonable job. I was a bit concerned with some of your early stories that your style was not suitable for our publications." In her written statement she said that: "Her early stories required heavy editing and I was concerned that she was not adapting her style to meet the guidelines for the publication and that her attention to detail was lacking. Early on in ELV's employment I expressed these concerns to Mr Baynes."
In her written statement, Ms Broomham confirmed that ELV had said after the death of her father that she wished to continue to work. She added that: "I did offer to ELV in a phone call that she could take time off if she wished, but she told me that she wanted to continue working to provide a distraction. I did check in with her to see how she was coping and she informed me she was managing." Ms Broomham was not challenged on that evidence.
Ms Broomham also gave written evidence that that Mr Baynes told her that he wished to terminate the employment of ELV and she suggested that ELV be asked to work on a particular story and that her efforts be used to assess whether her employment should be continued. When the story for 'the Donaldson Sisters' was produced, Ms Broomham states that Mr Baynes had told her that there were a number of "errors and issues with the copy". She says that: "He reiterated to me that it was better to release ELV from her employment earlier in her probation for both her and the company..I agreed…" She also stated that she did not believe that the termination involved discrimination, but that ELV "was not the right fit for the role and Mr Baynes made the right decision in terminating her employment."
Ms Broomham agreed that there had been a change in the demeanour of ELV in the second week of her employment. Her evidence was that during the call on 14 April "you were obviously upset and I could hear that you had been crying from your voice. You sounded upset." She stated that in the days following that, in telephone calls, she did not notice much difference in the demeanour of ELV apart from during the call on 14 April.
Ms Broomham did not recall whether in weeks two and three, when she said she had had a few relatively brief phone calls with the applicant and zoom calls, that the applicant had been "more argumentative" than in the first week of her employment. She said that ELV had not been argumentative in her conversations with her.
She also stated that she did not recall whether ELV "accepted feedback or gave pushback", whereas Mr Baynes said that she had been argumentative with him. When pressed on this by ELV in cross examination he stated that instead of saying in response to a direction "OK, I understand" she would give "a long expression of your thoughts."
Ms Broomham was specifically asked the following question: "Did you perceive through my interactions that I was experiencing any mental health problems?" Her response was: "No, I thought you were upset but didn't see any evidence of that."
A perusal of the emails between ELV and Ms Broomham that were in evidence does not disclose any evidence of ELV having a mental condition that would constitute a disability for the purposes of the Anti-Discrimination Act.

Evidence regarding Comparators

The applicant provided evidence from another journalist who had been suggested as a comparator by the respondent. The tenor of the evidence of that journalist was that Mr Baynes was difficult to work for and that any deficiencies in performance lay with him, rather than with her. She had been posited by the respondent as another comparator, to show that other journalists had "not worked out" and had been dismissed, not just ELV, and to seek thereby to demonstrate that ELV was not treated less favourably than others who were deemed inappropriate for their roles as journalists with the respondent company. To this, ELV countered that the journalist and other journalist who had been dismissed were given a longer period of time in which to "prove" themselves than was she.
ELV also submitted a number of job references and other material indicating that she had performed well in other positions.
The respondent also provided an example of another employee who was about to start work, but suffered a bereavement and asked to start later. Her request was granted and she started one month later than she had been due to start.
A further employee who had fibromyalgia was posited as a comparator by the respondent, arguing that her request to take leave had been fully accommodated by the employer. To this, the applicant argued that the employee had a primarily physical disability, rather than a mental health condition.

Consideration of the Evidence

There were emails in evidence that showed that from 14 April onwards, ELV continued to ask for more work and to submit articles. The tone of the emails from ELV that were in evidence do not, of themselves, indicate any sadness, depression, PTSD or other condition that may alert an employer to the fact that ELV was, or may have been, experiencing a mental health disability that was beyond grief due to a bereavement. The tone of the emails she sent was "upbeat" and positive. Those emails do not suggest any mental health condition of which the employer was aware or should reasonably have been aware.
Nor did she seek any special consideration, "time out" or less work due to the bereavement, except that on 13 April 2020 she said that she may not be able to do video calls and on 20 April that she wanted instructions not only by telephone but also in writing.
As to whether the vocal tone of the applicant was 'monotonic' or 'motonic' in the latter two weeks of her employment, the Tribunal prefers the evidence of Mr Baynes and Ms Broomham on this matter, because there are two witnesses, rather than one, whose evidence is consistent. In her evidence, Ms Broomham did not simply "echo" Ms Baynes, who is her supervisor, but, on issues such as whether the applicant was "argumentative" in the latter two weeks, she gave evidence that was different from that of Mr Baynes. She appeared to be responding clearly and honestly to questions from the Tribunal. Thus, where her evidence is consistent with that of Mr Baynes, the Tribunal gives particular weight to that evidence.
In addition, ELV's emails in the first week do not appear to be significantly different from later emails, so it would be consistent with that if her telephone and zoom presentation was also not very different in the latter two weeks of her employment, as compared with the first week.
For those reasons, the Tribunal accepts that the telephone and zoom presentation of the applicant in the latter two weeks was not very different from that in her first week, apart from the conversation on 14 April where she disclosed her bereavement.
ELV's evidence is that because she was new to the position, she thought she had "little choice" but to work on, but her contract of employment does not indicate that. When she announced the death of her father on 13 April by email, she affirmed that she wished to work, as indicated in the emails that were in evidence.
The evidence of Ms Broomham is also accepted that Ms Broomham also asked ELV if she wanted to take time off and whether she was managing and that Ms Broomham received replies from the applicant affirming that she wished to and was able to work.
Ms Jane Nicholls, mother of ELV, provided a statement that said in part:" Her boss appears to have expected her to carry on with no allowance made for this [bereavement]" (word in square brackets added) but this does not take into account that no allowance was sought by the applicant; on the contrary, the applicant affirmed that she wished to continue to work on and appeared able to do so.
If the applicant elected to work on after notifying her bereavement, then it was reasonable for her employer to evaluate her performance on the basis that she represented that she did not require time off after the death of her father but was fit to work, in the absence of evidence that she was labouring under a mental health disability, as distinct from grief.
The applicant agreed that as she had not told her employer that she had PTSD, depression, anxiety or other mental health condition, the Tribunal would have to draw an inference from conduct at work that the employer had dismissed her, in whole or in part, due to a disability, either PTSD, depression, anxiety or other disability.
The Tribunal has considered, in a number of cases, the circumstances in which applicants have sought to prove that disability was reason or factor in the treatment that they received, for example Hamed v Director General, Department of Education [2007] NSWADT 43; and Khanna v Director General, NSW Department of Education and Communities [2012] NSWADT 92.
As set out in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70], the Tribunal has identified considerations in the drawing of inferences as follows: A causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts i. An inference must be reasonably drawn on the basis of the primary facts ii. An inference can be drawn from a combination of facts, none of which viewed alone would support that inference iii. A fact relied on as the basis of an inference need not be proved to the requisite standard of proof iv. It is not enough that the inference is a mere possibility: it must be one of "probably connection" v. The inference must be a logical one, and no supposition vi. An inference cannot be made where more probably and innocent explanations are available on the evidence.
In this case, there is no persuasive evidence supporting the drawing of an inference that there was disability discrimination in the events of EVL's employment or in the termination of her employment whilst on probation.
The more plausible and probable reason for termination of her employment is that her performance was not of the requisite standard and deemed satisfactory by LRE, as indicated by on-going references to the need to edit her work, her quoting an out-of-date statistic and not being able to find the "search" function on the relevant website, arguments and expressions of frustration at her performance by Mr Baynes and the view of both Mr Baynes and Ms Broomham that she was not a suitable "fit" for the organisation.
The evidence not only of Mr Baynes but also Ms Broomham was that early in the employment of ELV, Ms Broomham expressed concerns to Mr Baynes about the suitability of ELV for the role. Ms Broomham was consulted towards the end of EV's employment and suggested using a particular piece of work to make a decision and stated that she agreed with the decision made by Mr Baynes. Thus, there is persuasive evidence from two members of staff that performance issues were the reason for terminating the employment of the applicant.
Even, contrary to the findings of the Tribunal, the applicant had a "flatter affect" in the final two weeks of employment as compared with her first week, and even if she had a more monotonic voice than usual, that is consistent with grief, which is not of itself, a disability.
There was nothing in the conduct of ELV to put an employer on notice that ELV was suffering anything more than grief in the latter two weeks of her employment. There are a number of matters to be weighed in making this assessment, including the following: the tone of ELV's emails, her willingness to take on more work, the fact that she could and did engage in lengthy telephone conversations with Mr Baynes and some calls with Ms Broomham, the evidence of Ms Broomham and Mr Baynes that neither of them thought that ELV was experiencing mental health problems, as distinct from grief, are matters that all need to be weighed. The evidence is that even if the applicant was experiencing grief due to the death of her father, she was able to continue working and chose to do so.
There was nothing in ELV's conduct or written notification to LRE to put the employer on notice of a possible mental health disability, PTSD or any other mental health disability, as distinct from what could reasonably be expected grief due to bereavement.
There was nothing said to the applicant by Mr Baynes or Ms Broomham or contained in any emails that were in evidence that suggested that any mental health condition played a part in the decision-making of the respondent regarding the applicant's future with the firm.
Nor was there any content in the emails or conversations reported by either party to indicate that stereotypes of people with mental health conditions or supposition as to the applicant having a mental health disability was at play in the decision to terminate her employment. On the contrary, the evidence shows that whether the applicant was performing the role in a way and to a standard that was satisfactory to the respondent employer was in issue.
The Tribunal is not comfortably satisfied, on the balance of probabilities, that EVL's employment was terminated due, at least in part, to disability discrimination. Thus, 'causation' has not been established.
Nor has it been established to the satisfaction of the Tribunal that the applicant was treated less favourably than others in the same or similar situations who did not have PTSD. In other words, 'differential treatment' has not been established.
The Tribunal accepts the evidence of the respondent that the employment of other journalists had been terminated where performance had been in issue, from the perspective of the respondent; that the respondent had supported a person who experienced a bereavement by providing leave for approximately one month where this was requested and that LRE had provided leave where an employee had fibromyalgia and required leave due to that condition. The Tribunal accepts that the respondent apparently tried to accommodate both of those employees in a bereavement and fibromyalgia condition respectively.
These two examples indicate that if the applicant had sought leave due to her condition, she may well have been granted it. But she did not disclose any mental health disability and did not seek to take the compassionate leave that was provided in her contract.
Her situation is not comparable with those of the two other employees because each of them sought accommodation in the form of leave, whereas ELV said on more than one occasion that she did not wish to take leave.
The applicant argued that she was treated less favourably than Ms Broomham in a situation where her work was criticised. The Tribunal does not accept that Ms Broomham is an appropriate comparator because she had worked with the respondent for several years, so it could reasonably be expected that any complaints about her performance would be weighed in light of that, whereas the applicant only worked there for a very brief period, from 4-23 April 2020. Also, there was no evidence of any complaints by Mr Baynes as to Ms Broomham's work. For those reasons, Ms Broomham is not an appropriate comparator as her circumstances are not "the same" as those of the applicant. They are "materially different" from those of the applicant and are not directly comparable.
The applicant also argued that two of the other journalists whose employment was terminated on performance grounds were treated better than she was because they were given longer in the workplace than was she, before termination occurred. This may be so, but unless the applicant demonstrates that the reason or one of the reasons that she was permitted a shorter time in the workplace than the other two journalists was her disability or disabilities, that is not of legal significance. The Tribunal has found that such a claim has not been made out.
The references and other documents relied upon by the applicant to demonstrate the she had performed well in other positions do not establish that her performance in this particular workplace could not have been unsatisfactory from the perspective of the employer as at 23 April 2020. Each workplace has its own requirements and constraints.

Conclusion 1. The Tribunal is not satisfied that the claim has been proven on the balance of probabilities and it is dismissed.

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

Amendments 24 May 2021 - Anonymisation corrected. 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: 24 May 2021

ELV v Leaders In Real Estate Pty Limited

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Cases Cited (4)