FGB v The Salvation Army

NCAT Administrative and Equal Opportunity|2021-03-31

REASONS FOR DECISION

The Applicant and the Respondent's witness in these proceedings are referred to respectively as 'FGB' and 'FFM' pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the CAT Act).
The Applicant identifies his disabilities as motor dyspraxia, epilepsy, major depressive disorder, autism spectrum disorder and post-traumatic stress disorder. From 2016 to 2019 the Applicant was a client of a transitional accommodation program, OTAS, through the Oasis Youth Support Network (Oasis), which is operated by the Salvation Army (NSW) Property Trust (the Respondent). OTAS supports disadvantaged and marginalised young people who are at risk of homelessness to successfully transition from crisis and tertiary homelessness into long term sustainable accommodation in the community.
On 4 February 2019 the Applicant was met by his OTAS case manager, FFM, at the Applicant's residence. What went on at that meeting is the subject of the Applicant's discrimination complaint, summarised by the President of Anti-Discrimination NSW (ADNSW) as: The complainant alleges [he] was subject to abusive language and conduct from his case manager because of his disabilities. Specifically, Mr [FGB] alleges his then case manager, while being at his property to offer him support, said to him that he is lazy, he must live in an institution because he is a mental case, he is a robot, he is a freak and a retard.
On 3 February 2020 ADNSW received the Applicant's complaint of disability discrimination in the provision of services pursuant to s 49M of the Anti-Discrimination Act 1977 (the Act), and accepted it for investigation. ADNSW attempted conciliation through "arm's length negotiations" in May 2020 but was unsuccessful at resolving the complaint. Characterised as alleging breaches of ss 49A, 49B, 49C, 49M and 53 of the Act, the Applicant's complaint was referred to the Tribunal pursuant to s 93C of the Act on 24 June 2020.
The oral hearing of this matter took place on 31 March 2021 in person, with a preliminary hearing held on 23 March 2021 in relation to the Applicant's objections to summonses issued by the Respondent. Further evidence and submissions were filed pursuant to the Tribunal's orders following the conclusion of the oral hearing, with the decision being reserved thereafter on 21 May 2021.

Legal principles

Section 49B of the Act explains what constitutes discrimination on the ground of disability: 49B WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF DISABILITY (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 … (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. … (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 4 of the Act defines disability to mean: "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.
In addition, s49A of the Act defines disability to include past, future and presumed disability: 49A Disability includes past, future and presumed disability 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).
The Respondent accepted that during the relevant period the Applicant was suffering from a "disability" as defined by section 4 of the Act.
Section 49M of the Act provides that: 49M PROVISION OF GOODS AND SERVICES (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability-- (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
The applicant would need to establish that the Respondent provides services, and that they were discriminated against (as defined by s 49B) in a manner which was unlawful under s 49M. The conduct which is unlawful under s 49M is limited to either: 1. refusing to provide the services, or 2. in the terms on which the services are provided.
"Services" is defined by s 4 of the Act as: "services" includes-- (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.
In the context of alleged discrimination under the similarly worded s 66K(1) of the Equal Opportunity Act 1984 (WA) Brennan CJ and McHugh J said in IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17: "In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides."
Terms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance: Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]. Section 49M does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.

The applicant's evidence

The Applicant provided various written accounts of what had occurred on 4 February 2019. The first account, contained in the complaint emailed to ADNSW on 2 February 2020, described the incident as: My complaint of unlawful discrimination is regarding an event which occurred on 4 February 2019. I was met by my then case manager from oasis being [FFM]. [FFM] came and visited me at my home at [address redacted by Tribunal]. During this meeting she came to offer me support in terms of case management. During our meeting I showed her around the common areas of the apartment building where I live. While in the common areas of my apartment building she used discriminatory language towards me, saying that I was lazy, that I must live in an institution because I am a mental case, that I am a robot, that I am a freak and that I am a retard. I was quite outraged and offended by the statements made by [FFM].
A similar account was contained in a statement provided by the Applicant during the Tribunal's case management of this complaint. A more detailed statement was attached to the GAL's report. The GAL stated that the Applicant had provided him with an amended statement on 29 January 2021 which stated: 1. On 4 February 2019 [FFM] came to my apartment at [address redacted by Tribunal]. The purpose of this visit was to measure for curtains. 2. [FFM] arrived at the apartment and I recall greeting her. [FFM] then proceeded to come into my unit and measure for curtains. 3. While in my unit after finishing she said to me "Thank Fuck you have left [name of street redacted by Tribunal] Street, you are a real pest. " I did not reply. She then said words to the effect of "I am finished". 4. I than proceeded to show her out. [FFM] then said in a loud and aggressive voice at the main entrance to my apartment building "You have been a real pain in the ass for a retard", "You are fucking lazy retard, "I do not know why you as a mental case are not living in an institution rather than here". 5. I then said "Please leave". [FFM] than said "Just remember you have been a real fucking pain for a retard for not leaving [name of street redacted by Tribunal] Street when you turned 25". 6. [FFM] was waving her hands around at one point she made physical contact while this was happening and her hand touched my face. It did not lead to any injury. I then said ''please leave" again. 7. She then said, "what a robot you are, All right I will leave but just you remember you are a fucking retard and a freak, see you later nut job". She then proceeded to leave and walk off. I then proceeded to go to my unit. 8. While [FFM] was saying the comments I sort of froze and simply stated please leave. While [FFM] was making the abusive comments to me she was speaking in a loud and aggressive voice. I felt scared for my safety at the time".
None of the written statements provided by the Applicant were signed, dated or contained a jurat or other indication that they were provided under oath or affirmation. The Applicant stated at hearing that he was not willing to be cross-examined. In the circumstances, whilst the Tribunal has accepted his statements into evidence, it places limited weight on those allegations and statement for which there was no corroborative evidence.
It was undisputed that the Applicant had not reported the incident of 4 February 2019, verbally or in writing, to anyone until making the complaint to ADNSW via email on 2 February 2020, shortly before the 12 month limitation for complaints expired.
Following the incident, FFM continued to be the Applicant's case worker and continued to attend the Applicant's accommodation in the context of providing support, as did other employees of the Respondent, until the Applicant ceased being a client of the Respondent on 28 February 2019.
The Applicant's GAL filed two separate reports with the Tribunal "as evidence" dated 25 February 2021 and 26 March 2021, "based on conversations with [the Applicant], documents filed with the Tribunal, and documents provided to me by [the Applicant]". Each contained the GAL's summary of multiple conversations with the Applicant, in which the GAL discussed the proceedings, the Applicant's complaint, and various documents obtained from the Applicant and Respondent. The information contained in the reports is predominantly hearsay recounts of conversations between the GAL and the Applicant, with almost no direct speech quotation or dates provided for these conversations. The reports also contain details of the GAL's methodology and his opinion on the Respondent's response to the complaint. First Meeting with [FGB]. 29. By prior arrangement I met with [FGB] at his home at 2.30pm on 18/1/2021. We talked for approx. 1.5 hours. 30. My approach was one that I have commonly used in dealing with abuse allegations' to commence from a stance of believing the alleged victim, documenting their allegation, and then seeking out any evidence that supports or contradicts their narrative.| 31. Where possible this includes interviewing the alleged victim and assessing how reliable their account sounds from an independent third-party perspective. 32. I would also routinely look at the background of the agency or program involved to see if there is any known previous history of abuse and/or pattern of "cover-ups", and, where relevant, any acceptance of responsibility for past abuse. 33. I had noted the very positive description of the Background of The Salvation Army provided on 15/4/2020 by Colonel Winsome Merrett of The Salvation Army in his response to [FGB]'s complaint, addressed to Ms Cathy Hahn, Conciliation Officer of Anti-Discrimination NSW. (Annexure A). 34. in reading this positivity, l was also aware of the "other" past history of the Salvation Army of not believing victims (particularly children) and summarily dismissing their disclosures only to find years later that abuse had occurred, had been well-hidden, and that inaction had left others at risk. 35. l did not think that this would still be the case with the Salvation Army and expected that they would have a totally different approach characterised by caring, acceptance, and above all transparency in accordance with public statements made in the past, for example by Commissioner James Condon (Annexure B). 36. l expected that this transparency would translate into allowing alleged victims access to the unedited records of their time in care (known as an "Open File Policy"), as my own agency did in my own previous senior management role. 37. I was sadly mistaken.
The GAL's report detailed a history between the Applicant and the Respondent which had soured as a result of the Respondent seeking to evict the Applicant from the accommodation they had provided to him from 2017 onwards, once the Applicant had turned 25 years old. The GAL suggested that the incident on 4 February 2019 was: "the possible culmination of months of negative interaction by a Salvation Army employee with an impossible client while having to measure up for his new curtains".
The GAL complained that the Applicant had only been provided with access to a redacted version of his client file by the Respondent and opined: 65. It seems clear that an attempt had been made to completely expunge Salvation Army staff members' names (including [FFM]'s name), and other professionals' names, from the records initially provided to [FGB] due to Salvation Army "Privacy" concerns. … 73. As an external observer I must ask why it was deemed necessary to protect [FFM]'s "Privacy" when disclosing records to one of her ex-clients, and whether this is the current "transparency" policy within the Salvation Army - especially in the aftermath of three Senate Inquiries and a Royal Commission.
The Respondent submitted that the records obtained by the Applicant of which the GAL complained had been provided by the Respondent under the Privacy Act 1988 (Cth) to assist the Applicant in his request for Legal Aid and therefore contained redactions. They had not been summonsed in these proceedings. An unredacted version of the records was provided to the Tribunal and the GAL prior to the hearing.
The GAL is not appointed to provide the Tribunal with his opinion on the veracity of the Applicant's evidence, or to link the Applicant's complaint with unrelated historical allegations against the Respondent of institutionalised sexual abuse. His role is to present the Applicant's case in circumstances where the Applicant's capacity to do so is limited, not to act as an independent expert, nor to assess the Respondent's evidence for the Tribunal, nor to make witness statements on behalf of the Applicant. The Tribunal considers the GAL reports and the GAL's opinions contained therein to be of limited assistance to the Tribunal in the circumstances.
The Respondent submitted that the matters referred to in the GAL's two reports were only capable of being received by the Tribunal as submissions, and it would not be appropriate for any finding of fact to be made on anything in those reports other than what may be drawn from the documents which were annexed. The Tribunal agrees.
The Reports annexed some documents from the Applicant's client file, held by the Respondent and provided to the Applicant in redacted form in response to a request made pursuant to the Privacy Act 1988 (Cth).

The Respondent's evidence

The Respondent provided a signed statement from FFM which annexed a statutory declaration made by her on 9 April 2020 and selected case notes from the Applicant's client file.
FFM was an employee of the Respondent from April 2016 to June 2020. From February 2018 FFM was the Oasis Transition Accommodation Team Leader. She attended the Applicant's residence on 4 February 2019 as his case worker, to measure windows for curtain installation and to discuss his transition out of OTAS care into public housing, to occur by 28 February 2019.
FFM denied the Applicant's allegation that she had had any negative interaction with the Applicant on 4 February 2019, and strenuously denied the words attributed to her by the Applicant. She categorically denied all the words attributed to her by the Applicant in each of his written statements and denied speaking to him in a loud or aggressive voice. She continued working with the Applicant after 4 February 2019 for more than two weeks (after which time he transitioned out of the Respondent's care) and was not aware of the subject allegations until the Applicant's complaint was made almost a year later.
FFM annexed case notes to her statement from the date of the alleged incident on 4 February 2019 and from 19 February 2019 when she claims to have taken the Applicant shopping to K-mart. Extracts from those case notes are reproduced below: Contact length Case Work: 45 mins Edit locked 15/02/2019 Last updated by [FFM], SA Inner City Youth Service Last updated 08/02/2019 11:04:02 AEDT Date 04/02/2019 Worker/s [FFM], SA Inner City Youth Service Contact Type Home visit Notes Writer attended [FGB]'s residence and supported the measurements of windows for curtain installation. Writer and [FGB] held conversation around what supports [FGB] would need moving forward and if he believed a referral for further case management would be appropriate. Writer reflected on how far [FGB] has come and that if he felt he required additional support in the future a proper referral could be made. [FGB] decided that he was happy with his supports as they are and plan made to exit [FGB] 28th February, 2019. Writer will liaise with other supports to ensure everything is in place prior to exiting [FGB] from OTAS. Contact length Case Work: 10 mins Edit locked 06/03/2019 Last updated by [FFM], SA Inner City Youth Service Last updated 27/02/2019 09:13:43 AEDT Date 19/02/2019 Worker/s [FFM], SA Inner City Youth Service Contact Type Meeting/ appointment Notes Writer and [FGB] completed K-mart shop for linen and other essentials. Both had conversation around [FGB]'s time at OTAS and reflected on what he accomplished and on his current situation. Both discussed any further support needed and [FGB] reported that he was happy for Oasis to close his support. Writer wished [FGB] well wishes and let him know that this information would be passed on to his current supports (icare support coordinator and OT)
FFM gave additional evidence in chief and was then cross examined by the Applicant's GAL. She explained that in a perfect situation, her case notes would be written within a 48 hour period after the meeting or visit occurring, but in busy times this could extend to a week or two weeks after. Critical situations or risks escalated the completion of case notes to within 24 hours. She kept her own handwritten, text or email notes which she then entered into the Respondent's case note system, but did not afterwards keep her own notes. She could not independently remember visiting Kmart with the Applicant on the specific dated of 19 February 2019 as she had recorded in the Respondent's case notes, but stated that shopping for and with clients was a standard activity she assisted with, and she recalled at least one visit to Kmart with FGB around the time of his transition out of OTAS care. She better recollected the several conversations she had about support for FGB, noting that while shopping was important, her priority was in ensuring adequate supports for the client in the community.
FFM was questioned about the timing of a welfare check on FGB which was requested on 8 February 2019. She couldn't remember the specifics of what had occurred, but said that she was expecting to hear back from FGB after her visit on 4 February 2019 and became concerned when he didn't make contact. She was concerned he had had a fall. She didn't recall any specifics about the visit on 4 February 2019 because there was nothing significant about the visit for her to remember. She relied entirely on her case notes as an accurate record of her interactions with and for the Applicant.
It was not put to FFM at any point during her cross examination that she was not being truthful or accurate in her recollection of the events of 4 February 2019. In re-examination she clarified that she had nothing to do with the Applicant and his tenancy with St George Community Housing at the relevant period in October 2017 to May 2018.
The Applicant's client file contained records demonstrating the relationship between the Applicant and FFM and the various activities she assisted him with in the course of her role as his case workers and the Oasis Transition Accommodation Team Leader. There were case file entries by FFM on 27 November 2018, 3 December 2018, 17 December 2018, 20 December 2018, 21 December 2018, 2 January 2019, 12 January 2019, 14 January 2019, 4 February 2019, 8 February 2019, 15 February 2019 and 19 February 2019.
Prior to FFM's involvement, the Applicant was supported by another case worker, with entries from that individual dated 16 and 21 November 2018.
In a case note of 2 June 2017 it was noted that the Applicant was known for calling himself derogatory terms, including the word 'retard'.
The Tribunal accepts the respondent's submission that the case notes are all business records for the purposes of s 69 of the Evidence Act 1995 (NSW) and their reliability (if this was a proceeding to which the rules of evidence applied) would be as evidence of the truth of the matter referred to in each of the documents. The Tribunal places considerable weight on the case notes in circumstances where the cross examination of FFM did not call into doubt the reliability of these contemporaneous primary records.

Is the complaint substantiated?

There was no evidence led by the Applicant that the Respondent treated him any differently after 4 February 2019. FFM was not cross-examined on this issue either.
The only basis for the discrimination alleged by the Applicant against the Respondent is the incident of 4 February 2019, specifically being the words alleged to have been stated to the Applicant by FFM. Before the Tribunal can determine whether this constituted discrimination within the meaning of ss 49A, 49B, 49C, 49M and 53, it must first decide whether the words alleged to have been said by FFM to the Applicant were, in fact, said.
The Respondent submitted that the case against it ought be dismissed at a threshold level, without needing to make any findings of fact against either the Applicant or FFM (as to who should be believed as to what was said, if anything, in the subject conversation on 4 February 2019), based on the fact that the Applicant has not established in evidence any of the following (even taking the allegations in his written statements at their highest): 1. That the Respondent provided a specific service to him, which falls within the ADA; 2. That, by virtue of the alleged words of FFM on 4 February 2019, those words were capable of constituting the provision of that specific service to him in a discriminatory way such that those services either were not provided at all or were provided in terms adversely to him comparatively to someone without a disability; and 3. That the Respondent entity authorised FFM in some way either by express act or by implication, to do whatever it is alleged to constitute discriminatory provision of services to him.
The Tribunal agrees that the Applicant has failed to establish any of the matters referred to above at 41.
Further, the Tribunal is not satisfied on the balance of probabilities that FFM made any of the statements alleged by the Applicant. The Applicant's evidence of the conversation is given limited weight for the reasons explained above. Detracting further from any weight to be given to the Applicant's allegations is the fact that no complaint was made by the Applicant in the nearly twelve months following the alleged incident, and the Applicant continued to receive support from the Respondent until the pre-arranged and pre-informed conclusion of the Applicant's accommodation support from OTAS.
The Tribunal prefers FFM's evidence on the basis that it was unwavering when tested by the Applicant's representative and was supported by the records contained in the client file.
Accordingly the Tribunal finds that the Applicant has not satisfied his onus that the alleged conduct by the Respondent's employee FFM occurred on 4 February 2019 (or at any other time). In the circumstances, the Tribunal finds that the Applicant has not established that any conduct by the Respondent towards the Applicant constituted discrimination within the meaning of the Act.
The Respondent submitted that the Applicant may have misremembered or hallucinated the conversation, providing evidence to support a submission that the Applicant's medication caused him to hallucinate the incident on 4 February 2019. This included information about various medications the Respondent claimed the Applicant was taking at the time of the incident and thereafter, his hospitalisations and mental health issues. The Tribunal considers that evidence to be of little utility in determining whether discrimination occurred as alleged, and makes no such finding.
Accordingly, the Applicant's complaint against the Respondent is dismissed.

Orders 1. The Applicant's complaint of discrimination against the Respondent 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 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: 28 January 2022

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Judgment (7 paragraphs)

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