Firth v Coles Supermarkets Australia Pty Ltd

NCAT Administrative and Equal Opportunity|2022-04-05|Before: Prof J

Reasons for decision

Mr Alster Firth (the Applicant), commenced employment with Coles Supermarkets Australia Pty Ltd (the Respondent) on or about 25 October 2013 as an Online Delivery Driver, also known as a Customer Service Agent or CSA, and continues to remain in that employment.
The Applicant sustained a workplace injury on 20 May 2015. The injury was to the Applicant's back, a disc desiccation with mild disc bulge.
It is accepted by the parties in these proceedings that the workplace injury so sustained is a disability within the meaning of s 4 of the Anti-Discrimination Act 1977 (NSW) (the Act).
On 14 December 2019 the Applicant made a complaint to the Anti-Discrimination Board of NSW concerning certain incidents that occurred at his workplace and various complaints about the handling of those complaints by the Respondent.
Following the unsuccessful resolution of that complaint, and by leave of the Tribunal, the Applicant was permitted to amend the complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 31 August 2020 so as to incorporate additional complaints against the Respondent in respect of incidents during the period 1 August 2017 to 14 July 2020 which were then relied upon by the Applicant in points of claim filed by him dated 3 May 2021.
Counsel for the parties have, by agreement, and in a most helpful manner, dissected those complaints to particularise what may be described as "sub-claims" in relation to each of the points of claim as follows: Sub-claim Points of Claim paras Alleged conduct Alleged basis of claim

    3 - 7                  Alleged repeated unreasonable behaviour by a colleague, Ms Carol Simon, between August 2017 and 22 November 2017.                                                                   Direct discrimination: ss 49B(1)(a) and 49D(2)(d)

The parties produced, by agreement, a chronology of key events alleged in the points of claim as set out below: Chronology of Key Events Alleged in Points of Claim 1. 25 October 2013 - Mr Firth commenced employment with Coles at the Casula store. 2. 20 May 2015 - Mr Firth suffered an injury to his back. 3. August 2017 to November 2017 - Mr Firth alleged Ms Simon repeatedly questioned him about his medical restrictions and asked him to carry weight over and above his restrictions and dealt with him in an unsafe, rude, aggressive or demeaning manner: refer sub-claim 1; Points of Claim [4]-[5]. 4. October or November 2017 - Mr Firth and Ms Simon, amongst others, transferred from the Casula store to the Willowdale or Denham Court store. 5. 22 November 2017 - Mr Firth made a complaint to Mr May, the Store Manager of the Willowdale store. 6. 23 November 2017 to 25 July 2018 - Mr Firth alleged Ms Simon failed to assist him load his delivery truck: refer sub-claim 2; Points of Claim [11(a)]. 7. 15 June 2018 - Mr Firth had a meeting with Ms Heaton in which he alleged that he was threatened with performance management or forced movement to a different role: refer sub-claim 3; Points of Claim [17]. 8. 25 July 2018 - Ms Simon swore at Mr Firth after helping him load his delivery truck: refer sub-claim 2; Points of Claim [11(b)]. 9. 15 August 2018 - Mr Firth alleged Ms Heaton told him he provoked Ms Simon and required him to do a workplace behavioural course within 2 days; refer sub-claim 4; Points of Claim [24]. 10. 24 August 2018 - Mr Firth alleged that Ms Simon attempted to "shoulder nudge" him: refer sub-claim 2; Points of Claim [11(c)]. 11. 11 October 2018 - Mr Firth alleged that Ms Simon accused him of blocking the loading dock and swore at him: refer sub-claim 2; Points of Claim [11(d)]. 12. 26 October 2018 - Mr Firth alleged that Ms Bayley directed him to lift crates over 15kilogram limit: refer sub-claim 5; Points of Claim [31]. 13. 31 October 2018 - Mr Firth alleged that Ms Simon accused him of stacking crates near the roller door: refer sub-claim 2; Points of Claim [11(e)]. 14. 14 December 2018 - Mr Firth alleged that that Ms Simon accused him of bringing his truck in too early and delaying another employee: refer sub-claim 2; Points of Claim [11(f), (g)]. 15. 2 January 2019 - Mr Firth alleged that Ms Bayley interrupted him in a conversation with another employee in regard to a workplace matter and directed him not to talk with work colleagues: refer sub-claim 6; Points of Claim [36]. 16. 22 March 2019 - Mr Firth alleged that Ms Heaton said words to the effect "I expect you to make your deliveries within the expected time frames": refer sub-claim 3; Points of Claim [18]. 17. 29 March 2019 - Mr Firth alleged that Ms Heaton and Ms Bayley placed limitations on toilet breaks and directed him not to take an EFTPOS carry bag or a spare battery with him on truck deliveries: refer sub-claims 7 and 8; Points of Claim [40], [44]. 18. 14 July 2020 - Mr Firth alleged that Mr Dalgleish fraudulently created emails in regard to the purported investigation which sought to show that the Applicant had not been discriminated against or bullied because of the disability and that the Applicant was satisfied with the investigation conducted: refer sub-claim 9; Points of Claim [50].
The relevant sections of the Act relied upon by the Applicant in his points of claim and in support of the sub-claims are as follows: 4A Act done because of unlawful discrimination and for other reasons 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. 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 (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. 49D Discrimination against applicant and employees (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 … (d) by subjecting the employee to any other detriment. 50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has - (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. … (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

Workplace

During the relevant periods the Applicant was employed at two separate online supermarkets operated by the Respondent. Initially he was employed at an online supermarket store at Casula and from about October or November 2017 he was employed at the Willowdale or Denham Court store.
An online supermarket involved a group of approximately 50 to 60 employees in each store responsible for fulfilling online customers' orders, "picking" the orders from various shelves and storage facilities within the online facility, packing those products into crates, placing the crates on trolleys described as "dollies", moving the dollies to a loading bay where small trucks or vehicles lined up for collection of the customers' orders before setting off at particular scheduled times to deliver customers' orders.
The employees responsible for fulfilling the orders are described as "pickers" and those responsible for delivering the customer orders in the small trucks are Customer Service Agents (CSAs).
The inherent requirements of the role of a CSA are described in a Task Analysis document used by the Respondent in the context of the return-to-work of injured employees to assess whether or not they are able to perform their roles based on information about their injury and limitations provided by the employee's treating medical practitioner. The Task Analysis describes different aspects of the CSA role as follows. The key tasks are: (i) pre-shift truck inspection; (ii) push orders on dollies to docking area and load customer orders onto the truck with assistance, i.e., team lift; (iii) drive the truck to customer premises, unload crates, using a carton/hand trolley to deliver the customer goods; (iv) return empty crates to the truck, flat packed; (v) cleaning of trucks as required.
As will appear later in these reasons, changes were later made, particularly in respect of item (ii) above.
Typically there would be between 10 or 11 customer orders per delivery to be undertaken by a single CSA in accordance with a detailed schedule prepared by the Respondent for each of the CSAs. In broad terms, the schedule gets transferred into a run sheet which describes the time for inspecting the vehicle pre-departure, the time at which the CSA driver is to leave the premises, the route to be followed, the order in which the deliveries should take place for each customer, being the time slot or window which had been nominated by the customer for receipt of the delivery, the times for taking breaks and the expected time for returning the delivery vehicle to the store.
Typically, there are two shifts that operate the deliveries. There is a morning shift for CSAs of about five and a half hours and an afternoon shift of the same length.
The daily scheduling for online deliveries is managed centrally by the Respondent and not at the online stores. There were eight to ten trucks available for deliveries, although not all of them were always in use.
If CSAs were held up, delayed or needed assistance on the road, they were expected to contact a customer service team and also to call the Online Manager or Duty Manager. CSAs completed run sheets during the day and were trained to communicate verbally to the Online Manager or Duty Manager any issues or concerns arising during the shift when handing in run sheets at the end of the shift.
Each driver's delivery schedule and route are programmed into handheld mobile navigation devices known as MDTs. The MDTs contain mapping information and a GPS navigation system and are pre-programmed with the delivery schedules and routes for each CSA for each shift. The CSAs take the MDTs with them on their delivery runs. The programmed delivery runs map out the routes and expected run times. It is expected that occasionally CSAs will be delayed on their delivery runs by issues such as traffic congestion, or hard-to-find addresses. However, most CSAs return to the store within 30 minutes of the expected run time. At the end of the shift, the CSA returns their equipment and unloads any damaged or undelivered stock.
On the evidence we are satisfied that the operations require a degree of efficiency, and for the Respondent time is a very important element in ensuring that the customers are serviced by a delivery within their nominated time frames, and that vehicles used by morning shift CSAs return to the online store in the time frames specified on the run sheet and are available for CSAs working the next shift.
A delay in departure by a particular CSA from the online store has the following potential effects: 1. it may impact delivery to the customer so that the delivery cannot be made in the nominated time; 2. it may delay the time that the CSA can return to the online store with the vehicle.
A delay by the CSA in returning to the online store has the following potential effects: 1. the same vehicle, if required for the incoming CSA, may not be able to depart on time; 2. the incoming CSA for the next shift, even having clocked on, may, depending on the availability of any spare vehicle, have to wait for the return vehicle before that CSA can carry out pre-departure tasks and leave on time; 3. delaying departure and impacting customer delivery time slots.
The delivery schedule prepared and given to each CSA in a run sheet is based on calculations and estimates by the Respondent as to the likely travel time between customers, the amount of time a particular delivery will take at a customer's premises, possible traffic delays, times for breaks and expected return time to the store. These calculations are made in part from the tracking of vehicles and are updated by data acquired from previous deliveries to the same customer's premises.
The evidence of Ms Heaton, which we accept, is that CSAs were instructed to ensure that in the event that a particular delivery took longer than the amount of time allocated in the run sheet they were to report this. For example, because a customer had not indicated in the online order particular features of the premises which result in additional time being taken, such as additional flights of stairs to deliver to the customer's actual premises, the CSA was to notify the Respondent's customer support service team to allow modifications to the CSAs run sheet and to schedule additional time. By this means the expected return time to the store by the CSA was extended. Such information was also valuable to input into the system operated centrally by the Respondent so that for the next delivery to the same customer adequate time would be allowed for the particular circumstances as advised by the CSA.
It is clear on the evidence that it was very important for the efficiency of the overall operations and timely delivery to multiple customers that CSAs departed the store at their nominated times and returned to the store as close to the nominated return time as possible.
It is also clear, and we find, that on a number of occasions when the issues of late departure and late return to the store were raised by the Respondent with the Applicant he had been repeatedly late in departing the online store for deliveries and also late in returning to the online store with his vehicle.
These delays were not insignificant in that on a number of occasions, and we find, the delays were for an hour or more and up to more than three hours after the nominated time on his run sheet. We are satisfied that such delays had an adverse impact on the efficiency of the Respondent's operations for the reasons we have outlined above, or had the real potential for doing so.
We are also satisfied that as a result of these delays the Applicant's managers, on a number of occasions, met with him to discuss the reasons for his lateness, both late departures and late returns, and also offered to him suggestions to enable him to improve on his performance in this regard. We deal with these matters in greater detail below.
We are also satisfied, and we find, that the Applicant's managers sought to assist the Applicant to meet his time requirements by allocating to him, where possible, delivery runs which involved fewer customer deliveries per run, or fewer bulk items although that could not always be achieved.

Legal Issues Principles

The parties made detailed submissions as to the legal principles to apply to the claims made by the Applicant. The Applicant submitted that: Direct Discrimination (a) Pursuant to s.49B(1)(a) of the Act, there are two elements to establishing 'direct discrimination'. The first being differential treatment and the second being causation (Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [45]). (b) In the current case, to determine whether Mr Firth suffered differential treatment, (there being no actual comparator by which to assess the differential treatment) a hypothetical comparator should be used (Purvis v New South Wales (Department of Education and Training) [2003] HCA 62). This requires the Tribunal to compare the treatment "that would be given in the same circumstances" to a person without Mr Firth's disability (Purvis, [11]). (c) In relation to causation, it is the reasons for the respondent's actions which are relevant, not their intention (Purvis, [236]). The reasons must be the 'real, 'genuine' or 'true' basis for the treatment (Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [47]; Mercieca v IHG Hotels Management Group (Australia) Pty Ltd and Salter Brothers (Coogee Beach) Pty Ltd [2022] NSWCATAD 63 at [17]). The central question is "why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability?" (Purvis, [236]). Where no direct evidence of causation exists, a causal link between the applicant's disability and his treatment may be inferred from the primary facts (Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]). Indirect Discrimination (d) Pursuant to s. 49B(1)(b) of the Act, a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator 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. (e) There are four elements to a claim of indirect discrimination: (1) the respondent requires the applicant to comply with a requirement or condition; (2) a substantially higher proportion of persons without that disability are able to comply; (3) the requirement or condition is not reasonable having regard to the circumstances; and (4) the applicant does not comply or is not able to comply with the requirement or condition. (f) Firstly, what constitutes the condition or requirement in a claim of indirect discrimination is a question of fact (Waters v Public Transport Corporation (1991) 173 CLR 349). (g) Secondly, to assess whether a substantially higher proportion of employees without a disability were able to comply with the requirement, the applicant is required to: (1) identify the base group; (2) identify members within the group who do not have a disability; (3) identify members who do have a disability and can comply; (4) compare the proportion of employees who do not have a disability and can comply with the proportion of employees who do have a disability and can comply. (h) Thirdly, in assessing the reasonableness of the requirement, the Tribunal is to balance the nature and extent of the discriminatory effect of the requirement against: (1) the reasons for the requirement (including commercial considerations); (2) whether the requirement is appropriate and adapted to its purpose and has a logical basis; and (3) whether there is a less discriminatory option to accommodate the aggrieved person. (i) Lastly, the inability of the applicant to comply is to be assessed in a practical (not theoretical) sense (Reddy v International Cargo Express [2004] NSWADT 218 at [59]). Grounds of Discrimination (j) The applicant relies on s.49D(2)(a) and (d) (as will be relevantly stated) in establishing his claim of discrimination. (k) In respect of s.49D(2)(d), in relation to what is meant by 'detriment', "all that is required… is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter" (Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34]). (l) Additionally, the unlawful discrimination need only be one of the reasons the act was done (s.4A of the Act). Victimisation (m) Pursuant to s. 50(1)(c) of the Act, it is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person has alleged that the discriminator or any other person has committed an act which, whether or not the allegation so stated, would amount to a contravention of the Act.
The Applicant further contends that characteristics that generally pertain to a person with his disability include an incapacity to lift heavy weight, and move with agility and speed. The Respondent accepts that an incapacity to lift heavy weight is a characteristic pertaining to persons with a back injury.
In respect of agility and speed, the Applicant submits that the Tribunal can draw an inference from the medical evidence relating to the Applicant. Further, it was submitted it is a matter of which, being 'open and notorious' the Tribunal may take on judicial notice relying on the decision in Araya v Owners Corporation SP 65717 [2021] NSWCATAD 5, [67].
The Respondent takes issue with the contention that the characteristic of incapacity to lift heavy weight includes an inability to generally move with agility and speed. The Respondent also challenges the reliance on the doctrine of judicial notice contended for. The Respondent submits this alleged characteristic does not arise out of the medical evidence, which in any event only relates to the Applicant personally, and the Tribunal should exercise caution before accepting that it is open and notorious or indisputable. In any event, the alleged characteristic is vague and unhelpful in resolving the issues in dispute.
We are cognisant of the need for caution in respect of the contention by the Applicant, particularly in light of the various decisions of the Tribunal referred to in Araya at [68] to [70]. We are of the view that this was a matter which, if relied upon, should have been the subject of evidence.
On the evidence which was led, the Tribunal is not in a position to make any meaningful findings as to whether the Applicant's disability in fact included an inability to move with agility and speed or, if there exists such an inability, the extent or degree to which this aspect of the disability pertains in the case of the Applicant. Moreover, there does not appear to be probative evidence that this characteristic was a material factor in the Applicant's performance of his work after he returned to work from sick leave. When considering the individual sub-claims upon which the Applicant founds his case, the evidence does not support a conclusion that the Applicant was unable to perform his duties timeously because of the absence of agility or speed caused by his disability.
The Respondent submitted that: (a) The form of discrimination alleged in in Complaints 1, 2, 4 and 6 - 9 is direct discrimination in the sense described in s 49B(1)(a) of the Act. The Applicant is required to establish 'differential treatment' by comparing how he was treated with how a hypothetical comparator without his disability would be treated in the same circumstances (Purvis v New South Wales (Department of Education and Training) [2013] HCA 62; (2013) 217 CLR 92; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [46]; Stefanac v Secretary, Dept of Family and Community Services [2018] NSWCATAD 106). He must also establish causation in the sense that his disability must be one of the "real", "genuine" or "true" reasons for him being subjected to a detriment (Burns v Sunol [2014] NSWCATAD 62 at [34]). If the aggrieved person was treated less favourably, was it 'because of', 'by reason of', that person's disability? (Purvis v New South Wales (Department of Education and Training [2013] HCA 62; (2013) 217 CLR 92 at [236] (Gummow, Hayne and Heydon JJ)). (b) In the context of direct discrimination, something is done on the ground of a person's disability for the purposes of s 49B(1)(a) includes if it is done on the ground of a characteristic that "appertains generally" to persons who have that disability or a characteristic that is "generally imputed" to persons who have that disability. These characteristics must be of a general or broad nature and not just ones which can be attributed to the complainant personally (Walker v State of New South Wales [2003] NSWADT 13 at [45]-[46]). In anti-discrimination proceedings, caution should be exercised in finding a fact by taking judicial notice (Lipman v Commissioner of Police [2015] NSWCATAD 250 at [175]; State of New South Wales (NSW Police Force) v Whitfield [2012] NSWADTAP 27 at [67]-[74]; Walker v State of New South Wales [2003] NSWADT 13 at [45]-[46]; Araya v Owners Corporation SP65717 [2021] NSWCATAD 5 at [68]). Further, the characteristic extension applies only to the causation element of direct discrimination and not to the element of "less favourable treatment" (Lipman v Commissioner of Police [2015] NSWCATAD 250 at [162]). (c) Complaints 3 and 5 are allegations of indirect discrimination, in the sense described in s 49B(1)(b) of the Act. These claims require the Applicant to establish that the Applicant was: (1) required to comply with a requirement or condition with which he does not or is not able to comply; (2) the requirement was not reasonable having regard to the circumstances of the case; and (3) a substantially higher proportion of persons who do not have the disability comply or are able to comply with the requirement or condition. (d) The onus of proving that a requirement or condition was not reasonable lays on the complainant (Waters v Public Transport Corporation (1991) 173 CLR 349 at 411 (McHugh J)). The relevant requirement or condition must be identified with some precision (Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165 at 185 (Dawson J); Waters v Public Transport Corporation at 406 (McHugh J)). The relevant question is whether the respondent has required the applicant "to comply with a requirement or condition" (Lipman v Commissioner of Police [2015] NSWCATAD 250 at [242]). (e) In each case, the discrimination is said to have been unlawful because the Applicant was subject to "any other detriment": s 49D(2)(d). In this context, there are no particular limits on the meaning given to the word "detriment" other than the requirement that there be a nexus between the identified detriment and the employment of the complainant (Watts v Australia Post (2014) 222 FCR 220 at [68]). However, there must be a harm or an act that leads to harm that can be objectively assessed (Georgiou v Spencer Holdings (No 2) [2011] FCA 22) in the sense that the loss, damage or injury suffered must be something which a reasonable person would consider to be a detriment (Wright v Commissioner of Police [2014] NSWCATAD 16 at [108]; Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41]; Lipman v Commissioner of Police [2015] NSWCATAD 250 at [255]) and the detriment must be a matter of substance and not trivial (O'Callaghan v Loder [1983] 3 NSWLR 89; (1984) EOC 92-023; Mitchell v Clayton Utz [2009] NSWADT 266 at [21]).
In respect of the victimisation complaint the Respondent submitted that: (a) Under s 50 of the Act, it is relevantly unlawful to subject another person to any detriment on the ground that the person victimised has brought proceedings or made allegations against the discriminator or any other such person under the Act. To prove victimisation, the Applicant must establish that: (i) he did one of the things in s 50(1)(a)-(d), relevantly including bringing proceedings or making allegations against Coles or other employees of Coles under the Act; (ii) he suffered a detriment; and (iii) the detriment occurred on one of the grounds in s 50(1)(a)-(d). (b) The test for causation in victimisation is relevantly the same as the test in respect of disability discrimination causation in the sense that the fact of the complaints must be one of the "real", "genuine" or "true" reasons for the complainant being subjected to a detriment (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20; Lipman v Commissioner of Police [2015] NSWCATAD 250 at [308]; Burns v Sunol [2014] NSWCATAD 2).

Sub-claim 1

The Applicant supported this claim by reference to the following evidence: (a) Once the medical restrictions were made, he was repeatedly questioned about medical restrictions and requested to carry more crates by Ms Simon, another CSA. (b) Ms Simon would say words to the effect "why cannot you carry three crates? You should be able to carry more" and that "you are delaying everyone." (c) Ms Simon would question him about the medical restrictions and request that he carry more crates every time he worked with her. (d) Sometimes when he worked with Ms Simon, she would tell him to 'step back' while she pulled the six crates down on to the vehicle floor single-handedly. This means that instead of moving the crates together, which is what is supposed to happen, Ms Simon would slide the entire stack of crates (usually 6 crates) onto the floor from the dolly without his assistance.
As is readily apparent this evidence lacks particularity. The Tribunal is not in a position to make necessary findings as to precisely when these events occurred, the context in which they occurred, the response, if any, by the Applicant to what is said to have been stated by Ms Simon, or precisely the reason she was making the enquiry as to why the Applicant could not carry three crates or more.
The evidence about the Applicant being told to step back is said to have occurred "sometimes". The same difficulty as outlined above applies. It is also not clear whether these occasions were separate from the occasions when the enquiries referred to were made.
If the events occurred at the same time it is, for example, possible that Ms Simon saying to the Applicant to step back and then moving up to 6 crates together was assisting the Applicant. In closing submissions Counsel for the Applicant was not able to exclude as an interpretation of the evidence that Ms Simon's conduct was to the benefit of the Applicant, although we recognise that the Applicant may have felt that he was not able to do his job when these exchanges took place.
Contrary to the Applicant's submissions, we cannot on the evidence set out conclude that the Applicant was discriminated against by Ms Simon on the ground of his disability or subjected to a detriment in the course of his employment.
The Applicant further submitted that the Tribunal should have regard for the absence of evidence about disputation between the Applicant and Ms Simon prior to his injury, a period when those two employees appear to have enjoyed a friendly working relationship. We have had regard to that evidence to assess whether by reference it is sufficient to establish as a reason the disability of the Applicant in the exchanges complained of. It is a challenging task for the Applicant to persuade us of that outcome on the limited evidence referred to.
There is also evidence concerning another event, and the views of the Applicant and Ms Simon as to the underlying tension in their relationship which may well have influenced their working relationship.
Ms Heaton stated in her evidence, and notwithstanding an attempt by the Applicant to challenge this evidence, we accept that during a conversation with the Applicant some time in July 2018 the Applicant made a complaint that his manager, Ms Bayley, did not support him and that she was involved in his "original incident" at the Casula store and was partially responsible for his injury and "ongoing state of mind". The Applicant went on to say words to the effect that Ms Simon was also involved in the incident and did not tell the truth. We accept this evidence in light of the near contemporaneous notes prepared by Ms Heaton and kept in her record of events.
According to Ms Heaton, in a follow up discussion with Ms Simon in July 2018 after her meeting with the Applicant, Ms Simon informed Ms Heaton of her belief that the tension between Ms Simon and the Applicant was due to a version of events in a previous incident to which she was a witness not matching that of the Applicant and therefore the Applicant had not forgotten. Her view about that incident was that the Applicant was in the wrong.
The Tribunal is not in a position to know the precise details of what did, or did not, occur in the previous unspecified original incident. However, Ms Simon did not appear to have had any concern about the Applicant's disability or inability to perform his duties but was of a different state of mind.
We refer to this evidence here to indicate that we are not prepared to infer from the absence of previous issues between these employees prior to the Applicant's injury that later tension and disagreement between them was on the grounds of the Applicant's disability. The absence of such issues, therefore, is in the circumstances outlined above insufficient to allow us to infer that the Applicant's disability was the real or genuine reason for Ms Simon's actions (Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [47]; Mercieca v IHG Hotels Management Group (Australia) Pty Ltd and Salter Brothers (Coogee Beach) Pty Ltd [2022] NSWCATAD 63 at [17]; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).
The Applicant then contends that on 22 November 2017 Ms Simon's treatment of him came to a head when there was an incident involving the Applicant and Ms Simon, together with another employee named Petrina, another CSA.
There was no suggestion that Petrina had any issue with the Applicant's work restrictions or with his disability.
The incident concerned a confrontation between Ms Simon and Petrina, on the one hand, and the Applicant, on the other, over whether the boom gate had been locked by the Applicant, as they contended he should have done but did not.
The incident on 22 November 2017 was as follows. Ms Simon together with another CSA, Petrina approached his delivery truck from the back. There is a dispute in the evidence as to who said the following words, namely, whether it was Ms Simon or Petrina, but we accept that one of them said to the Applicant that he had not locked the boom gate and that he shouldn't be in the job. Locking the boom gate was, on the Applicant's evidence, important because it could prevent someone from falling off the loading dock.
There was then an exchange between the Applicant and these two employees resulting in Petrina shutting the driver's door quite fast and Ms Simon allegedly then swearing at the Applicant.
The Applicant said that as far as he remembered he did lock the boom gate. At the time he said that he did but the other employees claimed that he had not done so. He said that Petrina shut the vehicle door and he responded that she should not slam the door to which she responded words to the effect that she will. The Applicant was upset that she had slammed the door.
In our view this incident, properly viewed in the context in which it occurred, namely, a dispute over whether the Applicant had, or had not, locked the boom gate, which was a necessary step to take, could not reasonably be held to have occurred as a result of any disability on the part of the Applicant. In our view there was a disagreement about the Applicant following a step unrelated to his disability which was the operative cause of this exchange.
We do not accept the Applicant's contention that this incident gives rise to a breach of s 49B(1)(a) or 49D(2)(d) by reason of the Applicant's disability. There is, in our view, no reason to attribute to Petrina's conduct any relationship with the Applicant's disability. She and Ms Simon were together concerned about the boom gate. We do not in the circumstances accept that Ms Simon was responding as she did for a different reason and we do not accept that the Applicant's disability was the real, genuine or true basis for the conduct complained of.

Sub-claim 2

The first element of this claim is that after the Applicant reported the incident between him, Ms Simon and Petrina to the Respondent's store manager Mr May on 22 November 2017 Ms Simon did not talk to him or help him until 25 July 2018.
The Applicant in his evidence seeks to attribute that situation to what he was informed by a work colleague, whose identity he would not disclose on the assertion that that person may face retribution from the Respondent for giving evidence against management. There is no evidence before us that this was a legitimate basis for withholding his identity. It was said that Ms Simon approached the other employee and said that the Applicant had reported her to the store manager.
There is no evidence before the Tribunal as to when the conversation between Ms Simon and the work colleague occurred, or in what context. There is no evidence as to when precisely the Applicant was informed by the work colleague about the conversation.
The Applicant further pointed to Ms Simon going out to smoke during her unscheduled breaks leaving him to load his delivery truck. It is not clear when this occurred.
The Applicant sent an email to his manager on 29 November 2017 which requested that she should please get help to load his van since "all the vans have left". From this we infer that the Applicant was not being assisted by any of the other CSAs operating all the vans.
On 7 August 2018 the Applicant made what is described as a confidential disclosure report on "STOPline" in respect of this concern. The report produced as a result recorded that the complainant, the Applicant, alleged that other team members refused to recognise that he has physical limitations as a result of a work-related injury and that they will mostly not help him. The complaint further recorded that recent issues "with the respondent" resulted in the Applicant complaining to management, after which the respondent did help him on a single occasion, on 25 July 2018, following which she then swore at him. From the evidence before us it is obvious that the person referred to as "the respondent" is Ms Simon. Once again, the complaint of not being assisted was not confined to Ms Simon but related to other team members who would mostly not help him.
Ms Simon is no longer employed by the Respondent. She was not called to give evidence.
In circumstances where these complaints relate to other employees as well, it is difficult to conclude with any confidence that Ms Simon was not assisting the Applicant because of an awareness of a complaint having been made about the incident involving her and Petrina. The evidence points the other way, and without knowing the precise circumstances in which the absence of help occurred, the Applicant's evidence does not reach a level at which the Tribunal finds that the absence of assistance was on the ground or the reason that a complaint was made about Ms Simon. The absence of particularised evidence concerning the conversation between the unidentified work colleague and Ms Simon and with the Applicant reinforces the difficulty of making such a finding.
Further, on the evidence, Ms Simon assisted the Applicant with his loading on 25 July 2018. If she was refusing to assist the Applicant because he complained about her there was no readily identifiable reason for her apparent change of approach.
The Applicant linked the events of 25 July 2018 to his second complaint. The Applicant submits that on that day Ms Simon assisted the Applicant to load his truck. After loading Ms Simon approached the Applicant and said that he should have said thank you, to which the Applicant responded that it is part of the team work to help each other. He did not thank Ms Simon. After his response Ms Simon said to the Applicant "f… you".
In an interview with Ms Heaton about this incident the Applicant defended his response by saying that he did not need to smile or thank Ms Simon, it was her job.
The exchange which we set out above does not, in our view, justify a conclusion that Ms Simon responded as she did on the ground of the Applicant's disability, or because the Applicant had previously complained about her. We find that it is more probable that the true reason why Ms Simon responded as she did was because of the Applicant's response, namely, that he simply said it is part of the team work, and expecting a "thank you" she appeared to have been offended by the response.
This was an unfortunate exchange between two employees who were clearly not getting on, but the conduct in our view was not unlawful.
Next, the Applicant sought to rely on an incident which was said to have occurred on 24 August 2018 and was claimed to involve Ms Simon attempting to 'shoulder nudge' the Applicant.
This incident was not regarded by the Applicant as worthy of reporting or investigation at the time as was apparent from the email of 23 October 2018 sent to Ms Kornak, one of the Respondent's managers, now elevated in these proceedings as unlawful conduct on the part of Ms Simon and the Respondent.
In evidence the Applicant said this incident occurred when he had finished his shift and when he was passing Ms Simon in the online room and she "tried" to give him a shoulder nudge which he avoided by moving his shoulder away. We note that in his email of 23 October 2018 the Applicant simply stated that Ms Simon came very close to giving him a shoulder nudge.
There was an absence of any context or detail of what in fact occurred. The Applicant was said to be passing Ms Simon in the online room. No detail was provided as to whether he was keeping his distance, or what space was available for passing.
The evidence about this incident falls far short of a standard at which the Tribunal can find that the conduct was discriminatory or victimisation and we conclude to the contrary.
Next the Applicant relied on an incident in which Ms Simon was said to have accused him of blocking the loading dock on 11 October 2018.
The Applicant's evidence was to the following effect: On 11 October 2018 during the morning, Ms Simon accused me of blocking the loading dock and swore at me, when I did not block the loading dock. Ms Simon then came to me and started telling me that I should be mindful and that more than one out is loading in a very angry way. I asked what happened from Ms Simon, as I wasn't sure what's is all about. Ms Simon then said "You know what happened, Bull shit, F***". … On 31 October 2018 - after I have finished my morning shift around midday Ms Simon accused me of putting some crates near the roller door when I did not. Ms Simon asked me words to effect, "Did you put this load of crates here". I responded to words to effect "No, I did not leave those crates there". Then Ms Simon said to me words to effect, 'They (crates) have to go (moved)'.
Ms Heaton prepared a written account of the 11 October incident available to her and recorded reports from the 2 employees concerned. It reads as follows: To whom it may concern. This is my statement of events on 11/10/18. Carrol had an issue with Alster. She said to me that I need to tell people to stop putting their dollies, loads in the way to make room for other people loading. Next thing I hear is Alster saying to Carrol "what happened, what happened" and Carrol muttering (not understanding what she said. I went out and said let's get loaded guys. Alster, you load your van. Carrol, you load yours. Afterwards Alster approaches me and said what happened - I say Carrol said she had dollies and load in her way when loading. Alster said how can I be in her way when I'm the 1st van. I said it happens in the afternoon as well. There is not much room for each van at loading time. Alster then says, - What happen I need to know. I repeated what I said. Alster then says your not listening to me. I said yes I am. I answered your question. He then says you are not listening to me again. I said Alster I am listening. He then says you are not letting me explain and then says don't worry I'm going to the store manager and walks off. When Carrol was getting her freezer she was saying why is he asking me what's wrong. Why does he keep saying it. I said let it go Carrol. You need to stop. This is not necessary.
The Respondent submits that the Applicant's evidence was that he did not block the loading dock but Ms Simon came to him and started telling him in a very angry way that he should be mindful and that more than "one out is loading" (an apparent reference to more than one truck requiring to be loaded). He says that when he replied that he was not sure what she was talking about, she swore at him. The Applicant also said that there was a further incident on 31 October 2018 when Ms Simon accused him of putting some crates near the roller door when he had not. Mr Mankodi has no recollection of the issue ever being raised with him and denied it ever was. The Applicant only said that Ms Simon asked him whether he put the load of crates by the door and said it needed to get moved. On its face, this was nothing more, the Respondent argued, than an innocent question and the Applicant's characterisation of it as an "accusation" was a self-serving flourish.
The Respondent further submits that even on the Applicant's version of these events, neither of the incidents in October 2018 appears to have any direct relationship with the Applicant's disability or the fact that he had made complaints about Ms Simon in the past and there was no evidence establishing the requisite causal connection. It is far from clear that Ms Simon would have treated any hypothetical other worker in a more favourable way. The real, genuine or true reasons why she acted in the way she did seemed to be because she perceived that the Applicant had blocked the loading dock or placed crates near the roller door. It is also entirely unclear what the detriment is said to be or how it could be anything of substance and not trivial.
We accept the Respondent's position and find that these events did not constitute a breach of the provisions of the Act relied upon. In our view the evidence demonstrated disagreement about a practical issue, namely, ready access to loading of vehicles unrelated to the Applicant's disability or complaint against Ms Simon.
We note in particular that Ms Simon's account, as recorded by Ms Heaton, was directed at "people" and not directly only at the Applicant. Ms Heaton's response to the Applicant that it happened in the afternoon as well, and that there was not much room for each van when loading, suggested to us that the issue was of a more general nature and not confined to the Applicant or his disability. His disability was not the real or genuine reason for the conduct.
Lastly, in respect of this sub-claim the Applicant relies on an incident when on 14 December 2018 the Applicant brought his vehicle into the loading bay ahead of another CSA, named Tim, and contrary to the schedule set for loading in turn.
When Ms Simon and another CSA named Mark became aware of what the Applicant had done they confronted the Applicant. The Applicant's evidence was to the following effect: 14 December 2018 around 6:00am Ms Simon accused me in the online room for bringing my delivery truck too early, when there was no impact to Ms Simon's work. Tim (unsure of his surname) was in the online room and Mark (unsure of his surname) may have been in the loading dock when this incident took place. When I walked into online room Friday 14 December 2018 at 6:00am, I grabbed the truck keys and did a vehicle check. Then I noticed one loading dock was available, which I thought was my turn to park and load (Mark & Ms Simon had their vehicles already on the loading dock). We have three or four loading docks for the online department. Then when I entered the online room after bringing my delivery truck into the loading dock, I noticed Tim was consolidating his run. Previously, Tim may have been in the cool room and that may have been the reason I missed seen him. I then approached Tim and apologised to him and I said to Tim, I did not realise that you were before me and as a courtesy, I asked Tim if I can move my vehicle out for him. Tim politely replied, No, do not worry because Mark will be leaving the store in 5 minutes and Tim was happy with it and he was not upset at all. (The correct procedure is to do the vehicle check, bring the vehicle to the loading dock, and then consolidate the cool items) Shortly afterwards, Ms Simon approach me and argued as to why I had to park my truck before Tim, I should not have done that, I am delaying Tim. I then said to Ms Simon, I did not realise Tim was next because there was a loading dock available and that I have spoken with Tim about it and he was happy with the arrangements we made. Then Mark who is a good mate of Ms Simon heard this argument and straight away Mark approached me with the same questions as Ms Simon and asked me why I parked before Tim and that I should not have done this. I provided the same answer to Mark which I provided to Ms Simon. On this day I did not take Ms Simon's or Mark's loading docks and I did not cause them any delays. After this incident I did not feel very well, as this caused me to be very anxious. I sent an email to the store manager on 27 December 2018 at 5:11pm in relation to this incident.
The incident was reported to the Respondent. Mark gave a signed statement to Ms Heaton to the following effect: On the day of the incident there was Carroll, Tim, Alster and myself in the room. Neither Leasa nor Kinc had started yet to run the room. I was on the dock loading a van when Carroll came to help, and she told me she just had a run-in with Alster because Alster had backed onto the dock before Tim; Tim was listed to be before Alster. I went to check the list and in-fact it had Tim as 3rd out, and Alster as 4th out. I approached Alster and told him it isn't right that he should sneak on before another driver, and Alster said that Tim hadn't done his vehicle check yet and was consolidating first, so Alster took the opportunity to move on to an empty space. I said that we all have to stick to a schedule and he shouldn't have backed on. Alster then said that he spoke with Tim and that Tim had okayed Alster to move on. I asked Tim about this and he confirmed Alster's story. I then approached Alster to apologise to him. We shook hands and I asked him if we were "good" and he said we were "good".
Ms Simon provided a signed statement concerning the incident to the following effect: To whom it may concern Mark Myself and tim where in the room, Mark and myself got our keys and got our trucks on the dock. Tim was consolidating his run then alasta came in the room checked his run out and was talking to tim. Then I noticed alasta was putting his truck on the dock. I just said to alasta that Tim needs to load before you and he said I talked to tim about it I then said something to Mark about it and Mark said it's not right as tim does need to get on and Mark said something about it to alasta and then Mark was talking to tim and then went back to alasta. It no time was I rude to alasta. Just pointing out that tim was before him. So know one would be late.
The Applicant's account was also given in an email to Ms Heaton on 17 December 2018. The Applicant says that he pulled into the loading dock thinking it was his turn to park and only later noticed that Tim was consolidating his run and was supposed to be before the Applicant. The Applicant said he spoke with Tim about it at that stage. He described speaking with Ms Simon and Mark but omitted important context and other evidence. The Applicant gave no account of Mark's apology which he accepted under cross-examination did happen.
In our view, and we find, this incident arose from the Applicant's initial steps to bring his vehicle to the loading bay out of turn.
That was the reason for the exchange which then took place between the team members. There was a concern that the step taken by the Applicant could impact on Tim, and that concern was also raised so that no one would be late.
Ms Heaton having investigated this incident stated, and we accept, that she was satisfied that it was just a misunderstanding on everyone's part and that there was no need to caution anybody or take further action.
We are satisfied, and we find, that there was no unlawful discriminatory conduct or victimisation of the Applicant concerning this incident. This was clearly an incident where there was a misunderstanding between employees unrelated to the Applicant's disability and no material detriment to anyone.
We are also not satisfied that taken together the six incidents relied upon by the Applicant as part of his second complaint lead to a conclusion of unlawful discrimination or victimisation of the Applicant. Contrary to the Applicant's submissions we do not identify a pattern of behaviour on the part of Ms Simon such as to conclude that the Applicant's disability was the reason for her conduct complained of. There was no differential treatment or victimisation of the Applicant on the basis of his disability or because of complaints made against Ms Simon by him. The Applicant's evidence falls far short of enabling the Tribunal to reach a contrary conclusion.

Sub-claim 3

The Applicant bases this claim on alleged threats by his managers of performance management or movement to a different role in discussions on 15 June 2018 and 23 March 2019.
By way of introduction to this complaint the Applicant contends that on Ms Heaton's evidence, shortly after starting as store manager of the Willowdale store in May 2018: 1. Ms Bellamy told her that there was "one team member in particular" (being, the Applicant) constantly returning late to the store at the end of his runs; 2. that she observed the Applicant regularly returning late to the store, between 30 minutes to 1.5 hours; 3. she was informed by Ms Kornak of the Applicant's back injury, and further, that the Applicant told her he had a back injury; 4. he would tell Ms Bayley "on many occasions" that he was unable to perform certain tasks due to his medical restrictions.
There is no dispute that on 15 June 2018, Ms Heaton (along with Ms Bellamy) called the Applicant to a meeting at the completion of his shift to discuss the Applicant returning late to the store after completing his runs.
This complaint must be viewed in the context that the Applicant did not then, and does not now, deny that on a number of occasions he was late to return to the store from the deliveries required to be made by him to customers and he did not meet the delivery schedules programmed into a device, namely the MDT, within the usual tolerances from the expected run times. There is also no real dispute between the parties that the Applicant was late more often than other CSAs and, sometimes, substantially late.
Also, the Applicant accepted that by June 2018 he was late on his deliveries on almost every shift.
The claim is of indirect discrimination. In essence, the Applicant argues that he was required to comply with the same delivery schedules as every other CSA and that this was unlawful discrimination because he was not able to comply with the timeframes for making deliveries whereas a substantial proportion of other delivery drivers were able to comply, and that the requirement was unreasonable having regard to his disability.
The Respondent accepts that a substantial proportion of other CSAs were able to comply with the timeframes set out in their delivery schedules programmed into the MDT devices that the drivers were required to take with them.
The evidence about what actually occurred at the meeting on 15 June 2018 is less than satisfactory. The Applicant in his affidavit affirmed on 16 February 2021 stated that at the meeting he was informed by Ms Heaton that he needed to improve his speed/work faster in response to which he said he had been working the fastest he could to the best of his abilities. He then stated that Ms Heaton stated that if he did not make any improvements in his return back to the store time that Ms Heaton would be having a performance meeting and he may be moved to a different role within the Company.
The Applicant submits that the Tribunal should adopt some caution on accepting Ms Heaton's account of this meeting as she may be confusing it, at least in part, with what occurred in March 2019. We think there is some merit in that caution.
In the circumstances the Tribunal regards the later email from the Applicant to Ms Heaton concerning the discussions on 15 June 2018 as of assistance in its determination of what occurred and the context in which the statements attributable to Ms Heaton are to be viewed. We do so notwithstanding that the email does not purport to be a full or accurate record of precisely what was said by whom at the meeting.
The Respondent does not deny that the prospect of performance management or movement to a different role was raised at the meeting but it was not a formal disciplinary meeting but a meeting to assist him to improve his performance. In our view, that is a reasonably accurate reflection of what occurred.
In respect of the email of 27 June 2018 the Applicant in his submissions notes that he discussed with Mr Heaton the following issues: 1. that he was unable to keep up with other drivers due to his medical restrictions; 2. that other drivers were acting in breach of the policy in order to meet the delivery timeframes stipulated by the Respondent; 3. he invited Ms Heaton to provide any corrections to his email but Ms Heaton failed to respond to that email, other than what she now says in her affidavit (almost 3 years later).
The Applicant then submits that though there were several issues referred to in the email about the 15 June 2018 meeting, the constant issue that affected all his deliveries was his medical restrictions.
We do not accept that this is a fair or accurate categorisation or summary of the meeting. We also do not accept the evidence of the Applicant in his reply affidavit that all the issues raised except his medical condition occurred only occasionally and lasted only a short time if it did occur. We do so for the reason that the evidence about his lateness does not bear this out. In addition, as we set out below, the Applicant's own account in his email does not bear this out.
The email of 27 June 2018 is of some 7 pages and also contained links to at least 16 separate emailed documents.
The explanations for the Applicant's lateness in returning to the depot concentrated, to a significant degree, on his complaints about: (i) the MDT navigation system; (ii) traffic causing delays; (iii) the fact that he departed the store late because he stayed back to help drivers who were loading their trucks; (iv) his inability to use his own personal GPS system; (v) the fact that he was a safe driver; (vi) parking problems; (vii) fuelling needs; (viii) being given loads beyond his restrictions; and (ix) being banned from using his own personal GPD.
In relation to what he described as his medical restrictions he set out to his managers that because he has medical restrictions from a workplace injury he had to adhere to those restrictions.
He said that he had many situations where customers said that some drivers carried so many items, crates, etc. at once to make the delivery against the Respondent's instructions. That, he said, was another reason he would be taking longer to return back to the store. He carried one crate at a time.
Other drivers he claimed dragged multiple crates at once towards the vehicle door. He had to follow his push and pull restrictions. In this example, the customer mentioned that the previous driver carried two packs of (600ml x 24) water up to the third floor, whereas he carried only one water pack up to the third floor making more trips than the previous driver and staying within his lifting restrictions. Thus, it took him longer to deliver than the other drivers, for example, on 2 November 2017 he had to carry 600ml x 24 packs of water nine times, through steps to level three.
This account by the Applicant emphasised a number of matters, namely, that he remained cognisant of the restrictions imposed on him, that he carried only one crate at a time which, according to the evidence, was a requirement on all drivers under the Respondent's policies. The account also did not reflect any attempt by the Applicant to follow the instructions required of him, as outlined in the evidence of Ms Heaton, that in circumstances where it was necessary to take longer to deliver a customer's order than allowed for in the run sheet and schedule because of particular unforeseen issues, he was required to advise the customer support service team and he would be given an extension of time to accommodate a late return.
Having set out all the matters causing him to be late in returning to the store the Applicant stated in the email that the two main issues that concerned him the most were not being allowed to use his personal GPS in conjunction with the MDT, whereas other drivers seemed to use their personal GPS/phone without any hindrance, and all the problems with the MDT listed by him needing to be fixed.
Ms Heaton in her evidence dealing with the email of 27 June 2018 said that she was not certain who on behalf of the Respondent attended the meeting with her but further stated that: … b. I refer to the section heading :one particular delivery". The Applicant had previously been told that if he was having issues with his MDT device or if he encountered problems during the delivery, for example where the customer may not have included any notes or warning about difficult deliveries or stairs, then he needed to write this in his run sheet and also raise the issues with Ms Bayley when he returned back to the store so that it could be escalated to the customer service team, if necessary, to make some note of that delivery route for future deliveries. c. It was not uncommon for delivery drivers to experience occasional difficulties with some deliveries, but it did not explain why the Applicant was so frequently late. d. In this conversation I said to the Applicant words to the effect of "If you are writing down any issues that you have in your run sheet, you also need to tell Leasa that you have had issues when you get back to the store. She is very busy and other drivers will tell her if they have written something on the run sheet that they want her to look at. Otherwise she will assume it is okay and the run sheet will be filed away. It is important that you communicate with her." I had said words to this effect to the Applicant in the past, but he did not take that feedback on board and he did not communicate with his line manager as I was asking him to. e. I refer to the highlighted section heading "Medical restrictions". On many occasions, not just in this meeting, the Applicant would say things like "Other drivers are cutting corners" or "other drivers get it done faster by not doing things safely" or "I have taken some photos of other drivers doing things they shouldn't be doing". In each case, I would say to him words to the effect of "Alster, how do you know this if you aren't on the trips with them? You need to tell me who these people are or show me the photographs so I can speak to them. We do not tolerate cutting corners or unsafe practices and if you see anything like this you need to tell me about it." The Applicant never did tell me who the drivers were. The impression that I got was that the Applicant was trying to deflect from my criticism about his delivery times. f. In relation to his medical restrictions, if he had a delivery where the customer had not included a note on the delivery request warning us about 3 flights of stairs (for example), I said to him words to the effect of "it is good that you are taking only one pack of water at a time because this is what you are supposed to do. But in this situation you should be calling customer service and telling them of your delay so that they can notify the next customer. You should also be calling Leasa and telling her as well." g. I refer to the section heading "Breaks". I told the Applicant that "it's very important that you take your breaks." The breaks were pre-scheduled into the daily delivery route and provided for lunch breaks and other shorter breaks. It was important that all CSAs observed these breaks for safety reasons and also so that they could keep to the schedules. I said to the Applicant words to the effect of "you should be taking all of your breaks as they are scheduled, and they should not be a reason why you are late. If other drivers are telling you that they are not taking their breaks, you should tell me or Leasa so we can speak to them about them. We can see on the data if a delivery driver is not taking their breaks so if you tell us who is not doing it, we can check their data." Again, the Applicant did not provide me with the names of who the drivers he was referring to.
There is no mention by the Applicant that in jumping to assist others load their loads he was in any way impeded by his prior injury, or that he could not move with agility and speed in doing so. The Respondent's requirements as to lifting and not cutting corners, and taking of breaks, applied to all drivers.
The Applicant also lead evidence from three witnesses who had been employed by the Respondent as a CSA. One of them, Mr Anthony Glanville, stated: I am aware that the Respondent has a policy that says that online delivery drivers should not lift more than one full crate at a time. In my experience, if I complied with the policy, I would not have been able to fulfil the requirements placed on me by the Respondent to make the deliveries on time. Sometimes I placed 6 crates on a trolley and carried them up like that. Sometimes I carried multiple crates in my arms.
The evidence from Mr Alexander Ward and Mr Daniel Gimenez was to the same effect.
None of these witnesses make reference to the ability to obtain additional time, if required at a particular delivery site, by reason of the restriction in the Respondent's policy.
In addition, if other CSAs were unable to comply with the requirement it leaves the Applicant unable to satisfy one of the requirements for indirect discrimination, namely an ability of the majority to comply with the requirement which he was unable to fulfil.
In our view the Applicant has not made out his case in respect of this requirement by the Respondent. Although he refers to medical issues, his overriding concerns and the operative cause for delay were not those issues. In addition, where the restrictions on his lifting capacity, one crate at a time, affected him, there was the capacity to accommodate the extra time required if he followed procedures.

22 March 2019

The Applicant states in his evidence that on 22 March 2019 the Applicant was told by Ms Heaton at a meeting with him on that day that she expected him to meet the delivery timeframes as specified in the expected time frames give to CSAs.
The Applicant submits, and we accept, that this was a requirement or condition that he perform his deliveries on time. It is submitted that the Applicant, being the only CSA with a back injury was unable to comply with this condition in circumstances where the remaining CSAs without his disability, being a higher proportion, was able to comply.
The Applicant then contends that it was not reasonable to require the Applicant to comply with that condition given that adjustments could have been made to his delivery runs to enable him to meet the delivery timeframes and that threatening the Applicant with performance management or movement to a different role was a detriment in the course of his employment or was discrimination in the terms and conditions of his employment.
The Respondent points to the context in which the meeting on 22 March 2019 occurred as described by Ms Heaton by reference to what occurred in January 2019 concerning the Applicant's late departure from the store.
Ms Heaton says in early January she again spoke with the Applicant about his consistent lateness in departing the stores, his lateness on deliveries and on returning to the store. By this time, loaders were pre-loading the trucks and so CSAs were expected to do their checks and depart the store within 15 minutes of commencing their shifts (a change from what is described at paragraph 12 above). Ms Heaton says that after the Applicant explained his routine in relation to his pre-departure vehicle checks, they had a conversation which again involved the Applicant complaining about the MDT devices and discussing his pre-departure inspection routine and making no mention of his disability as a reason for his late deliveries. Ms Heaton took notes in her diary kept at the time of this conversation, which are consistent with the account set out above and which lead us to accept her account.
Following receipt of an email from the Applicant on 20 January 2019, Ms Heaton organised a further meeting with the Applicant to discuss his performance. In this email the Applicant listed the tasks he said he had to perform before he could leave the store. He listed some 19 tasks. The Applicant made no mention that he was delayed in the performance of those tasks by reason of his injury, or that the delay in departing the store was caused by his injury.
In relation to his pre-departure routines and tasks identified by the Applicant, Ms Heaton again said to him words to the effect of "This is not part of the process. More often than not we allow you to take an extra 10 minutes to complete your checks. Leaving the store late impacts your deliveries." The Applicant raised numerous other reasons for his failure to complete his deliveries on schedule, including MDT issues, toilet breaks and his desire to use his mobile phone for navigation. He was again reminded that all CSAs were forbidden from using their phones while driving. The Applicant was also not taking his scheduled breaks. Ms Heaton's diary notes of this conversation are consistent with this description of the conversation and we accept her evidence. There is no suggestion in her evidence or her diary notes that the Applicant made any mention of his disability in these discussions.
It is against this background that the Applicant says that on 22 March 2019, Ms Heaton approached him and re-iterated that she expected him to make his deliveries within the expected time frames and says that he was not provided any extra time to accommodate his disability. His run sheet appears to say the following: Donna spoke to me this morning. I have advised her of the new recent changes of how our vans are being packed / loaded. I advised her about having very large gaps between crates & the high chances of its toppling and items getting mixed. Also I advised her that how bulk items are stacked at the door & how I have to move them away each time I get into the […] thus causing me delays. She also re-iterated again that she expects me to do my deliveries within the expected time frames.
It is apparent that the meeting in January 2019 and the follow up email of 20 January 2019 concentrated on the Applicant's late departure from the store. Ms Heaton pointed out to the Applicant that he was doing a lot over and above what was required in predeparture checks and to get away, tasks not part of vehicle start up inspections required by the Respondent.
The Applicant raises in support of this complaint in the submissions put forward on his behalf matters arising during deliveries, for example, the one crate at a time policy (applicable to all CSAs), the need to stop momentarily when tasks became repetitive, customer requirements as to where to place deliveries, the need to make multiple trips in multi-story apartment blocks, which, as we point out above could be addressed by notification to the customer support service, and delivery of a 'bulk orders'. These submissions in our view do not materially advance the Applicant's case.
Following the receipt of the email of 20 January 2019 from the Applicant Ms Heaton and Ms Bayley organised and had a further meeting with the Applicant. The date of that meeting is unclear.
Ms Heaton stated in her evidence that she organised a meeting with the Applicant, Ms Bayley and herself to discuss the Applicant's late departures from the store. The Applicant again listed all the tasks he needed to complete before departing for his runs in similar terms to the conversation earlier in January 2019 described above. She again said to him words to the effect of, "This is not part of the process. More often than not we also allow you to take an extra 10 minutes to complete your checks. Leaving the store late impacts your deliveries".
In this meeting, the Applicant also raised numerous other reasons for being late on his delivery runs similarly to the meeting in June 2018. He says they spoke about the MDT issues again, him having toilet breaks and not using his phone for navigation while driving. The Applicant continued to complain about problems with the MDT device and that he could not use his phone GPS instead. Ms Heaton reminded him of the safety reasons for this in words to the effect of: "Alster, none of the CSAs are allowed to use their phones. You need to use the MDT. It's a safety issue. If you are having issues with the addresses, you need to keep communicating with Leasa about it".
The MDT reports also showed whether CSAs were having their breaks or not. The reports showed that on some occasions, the Applicant was not having his breaks at the scheduled times. A discussion about this issue occurred to the following effect: The Applicant: "I don't believe the breaks are scheduled when I need to actually take my breaks. Sometimes I don't need to take breaks. I also know other drivers aren't taking their breaks." Ms Heaton: "You need to take your breaks when scheduled. The scheduled breaks will help you keep on track with the delivery schedule. You can also take other breaks when necessary."
Ms Heaton made notes of this conversation in her notebook.
At about this time, the business introduced an upgrade to the software on the MDTs which allowed the CSAs to correct an address on the spot and directly into the device if the instructions had taken them to the wrong address. The CSA could do this by dropping a pinpoint onto the customer's driveway on the device once they had parked the truck there and the system updated that to be the proper location for that address. Ms Heaton explained the upgrade at a team huddle in the Online Room and also spoke to the Applicant about it separately because she knew it was an issue that he had raised several times before. She made a note of this in her notebook below the notes of the conversation set out above.
The Applicant took issue with this evidence on the basis that the meeting did not occur on 20 January 2019, but Ms Heaton did not expressly say that it did. He also claims that the issue of toilet breaks was only raised by him on 29 March 2019. We, accept that the Applicant's need for using the toilet pre-departure was the subject of detailed discussion at a later meeting but otherwise accept Ms Heaton's evidence supported by her notes.
In relation to these discussions the Applicant also stated in his evidence that the issues arising from the MDT confronted other drivers as well.
The issue concerning the late departure from the store cannot be considered simply on the basis that the Applicant had a previous injury constituting a disability under the Act. It must be borne in mind what that injury precluded the Applicant from doing so as to assess his inability to comply with the requirement to meet his required timeframes.
At the relevant time the Applicant had been certified as fit to perform his role. The limitations imposed on the Applicant by the medical advice related to lifting restrictions, repetitive bending and on sitting and standing.
On the evidence, and we find, the pre-departure requirements at the relevant time did not materially adversely impact those limitations.
The position of the Respondent's managers is that the Applicant needed to improve his performance, and if he did not do so there may have needed to be performance management of him or movement to a different role. This was not acted upon notwithstanding that the Applicant's performance did not improve after the managers continued to urge upon him improvement. Further attempts at assisting the Applicant to improve his performance followed.
To the extent that foreshadowing such action is a detriment, it must be seen in context. It was not advised to the Applicant because of his disability and is in our view not such as to warrant findings of unlawful indirect discrimination against the Applicant. The indication given to the Applicant did not disadvantage him as a matter of substance.

Sub-claim 4

The crux of this claim, as submitted and explained by Counsel for the Applicant, is that following the incident between Ms Simon and the Applicant on 25 July 2018 Ms Heaton required the online department to undertake workplace behaviour training, the Applicant being the only one required to undertake that training within 2 days.
There is no dispute that all relevant employees were required to undertake the course and eventually did so. However, Ms Simon appears to have completed the training only in May 2019.
The Applicant in an email to Ms Heaton on 10 January 2019 stated that Ms Heaton had informed him that she was getting all staff to do the course and not just him within the same two day timeframe.
According to Ms Heaton the exchange between her and the Applicant in respect of the training issue were as follows.
Following her discussions with the Applicant and Ms Simon, Ms Heaton spoke to Monica Kornak in People & Culture about getting the whole online delivery team to complete workplace behaviour training to remind staff of the need to respect each other and each other's boundaries in the workplace. She made a note of her reasons in her notebook. She left Ms Bayley in charge of having the online delivery team complete the workplace behaviour training by the end of the week. No one was singled out.
Later that week, when the Applicant was completing the workplace behaviour training, he approached Ms Heaton in the POS office. They had a conversation to the following effect: The Applicant: "Why is it necessary for me to complete this training? I haven't done anything wrong. I am the victim in all this." Ms Heaton: "As I have already discussed with you and Carrol, I feel that both of you have not responded appropriately. Your bickering and constant remarks is affecting everyone. This is a great time to review this training to remind everyone in the team what Coles' expectations are in the workplace and to be mindful of your fellow team members. I'm not singling out either you or Carrol to complete the training; it's a great training opportunity for everyone."
Ms Heaton made notes of her discussions with the Applicant at some time thereafter.
Ms Heaton's notes record that two days after the discussions with the Applicant about the incident between him and Ms Simon the Applicant approached her whilst he was completing the training and questioned why it was necessary for him to complete the training as he was the victim in the event. Ms Heaton responded, according to her notes, that as discussed with him, she felt that both parties had not responded appropriately. She noted that their bickering and constant remarks were affecting all employees.
On that account, the concern in the meeting with Ms Heaton appears to be more with the fact that the Applicant had to undertake the training, he felt he was the victim, as opposed to having to do so within 2 days.
The evidence before the Tribunal satisfies us that on 15 August 2018 Ms Heaton directed the Applicant to undertake the training. She delegated the task to have the whole online delivery team complete the workplace behaviour training to Ms Bayley who was responsible to ensure that all members completed the training. Ms Kornak says that by 13 September 2018, Ms Heaton reported that around three quarters of the team had completed the training. This evidence is supported by contemporaneous written records in the form of Ms Kornak's diary notes. Neither Ms Heaton nor Ms Kornak were challenged on this evidence in cross-examination.
The Applicant submits that the Tribunal should find that: 1. Ms Heaton requiring the Applicant to undertake the workplace behaviour training within two days arose within the context Ms Simon's conduct in respect of the Applicant's medical restrictions (Second complaint) and in circumstances where Ms Heaton had ongoing performance concerns with the Applicant returning to the store persistently late; 2. Ms Heaton's requirement to undertake workplace behaviour training within two days was differential treatment less favourable to a person without the Applicant's disability, and particularly, Ms Simon was not under any such requirement; 3. the requirement for the Applicant to undertake the workplace behaviour training within two days was a detriment in the course of his employment, being that the Applicant was given a limited time to comply with the requirement and the facing the possibility of further performance management from management. In the alternative, the Applicant was discriminated against in the conditions of his employment.
It follows, it is contended, that Ms Heaton treated the Applicant less favourably than a person without his disability in breach of s49D(2)(a) or (d). On that basis, the Respondent is liable for Ms Heaton's conduct pursuant to s53 of the Act.
We recognise that not all employees undertook the training within 2 days and Ms Simon only did so some months later.
However, we do not accept the bases for the findings of less favourable treatment advanced by the Applicant.
First, we cannot conclude with confidence that the requirement on the Applicant was to complete the training in 2 days when his complaint was initially that he was the innocent victim.
Secondly, we cannot on the evidence conclude that the requirement for training had any bearing on Ms Simon's conduct in respect of the Applicant's medical restrictions. In respect of the incident relied upon the parties could each have responded to each other in a more civil fashion and, as Ms Heaton viewed the matter, each had not responded appropriately. There was in the exchange which occurred between Ms Simon and the Applicant no issue about the Applicant's medical condition.
Thirdly, the contention that the requirement to undertake the training in two days was differential treatment less favourable to a person with the Applicant's disability is not supported by an analysis, or evidentiary support, as to why it was detrimental to someone with the disability. There is no evidence that the training required in any way any physical activity on the part of the participants. Further, there is no evidence to support a conclusion that the requirement to perform the training in 2 days, and undertaking the training, gave rise to that employee being any worse off against an employee who undertook the training some days or weeks later.
All members of the online delivery team eventually completed the workplace behaviour training.
We recognise that there is no explanation as to why Ms Simon only undertook the training later but cannot identify in the evidence that this favoured her in a material way when compared to the Applicant. We do not accept that as a matter of substance the Applicant was disadvantaged.
Fourthly, there is on the evidence no nexus between possible performance management earlier raised because of the Applicant being late on leaving and returning to the store and the interaction between those 2 employees giving rise to a considered approach by management that the whole team would benefit from the training because of the way employees were interacting with each other.
The Applicant has not made out his case in respect of this complaint based on alleged discrimination.
In respect of the victimisation complaint the evidence does not establish that the complaint arose from Ms Simon's 'contempt' of the Applicant's medical restrictions as asserted. The evidence does not establish 'contempt'. The evidence does not establish that what occurred on 25 July arose from such 'contempt'.

Sub-claim 5

This claim concerns one delivery issue arising as part of the Applicant's duties on 26 October 2018.
On the morning of 26 October 2018 the Applicant was assigned a delivery, amongst his other deliveries, which was one containing a number of heavy items in crates. The Applicant took the view that to undertake the delivery he would exceed the restrictions applicable to his return to work regime.
The Applicant then raised with the person in charge of paperwork his concerns about the delivery who then contacted Ms Bayley by phone. He states in his evidence that Ms Bayley responded by saying words to the effect, on speaker phone, that if there are no other delivery vans, he had to do it.
Ms Bayley then also attended on the truck parking area, inspected the items for delivery and told the Applicant on her account to put it on a dolly (being the equipment for moving the items to the truck) and deliver it "one crate at a time".
There appears to have been two issues of concern to the Applicant at the time, some crates weighing more than 15kg being beyond his lifting restrictions, and repetitive bending required which he regarded as beyond his doctor's recommended restrictions.
The Applicant was dissatisfied with the response from Ms Bayley. He attempted unsuccessfully to contact another manager, Mr Amini.
He did, however, speak to the relieving manager, Mr Mankodi who told him not to deliver the particular items that he was concerned about and was not comfortable carrying. This was consistent with the terms of the Applicant's return to work plan signed by the Applicant committing him to ensure that all work is carried out within prescribed restrictions and in line with safe work practices.
He then left the store with his deliveries and whilst performing deliveries, other than the one in issue, he contacted SafeWork NSW who advised him not to perform the delivery if it was not safe to do so.
As a result, the Applicant did not deliver this customer order. It was returned to the store and delivered by another CSA, it appears on the following day.
The Respondent did not take any action against the Applicant for declining to make the delivery although it subsequently urged him to follow correct procedures for raising his concerns, meaning as we understand the position the ability to raise issues of this kind internally as opposed to approaching the regulator before the issue was dealt with which was not challenged in a material way.
In respect of the 15kg limit which the Applicant raised as a concern, Ms Bayley stated in her evidence which, in the absence of any serious challenge, we accept as follows: 1. The delivery in question involved multiple cartons of 24 cans of soft drink, which is a type of item described as a "bulk item" because bulk items are larger than most other groceries and are carried by themselves rather than packaged up with other items. The Applicant was concerned because someone in the picking team had loaded two of the crates with two cartons of soft drink each. I have been shown a photograph at annexure 14 to the Applicant's First Affidavit that depicts the two crates each packed with two cartons of soft drink and I remember this to be the issue that the Applicant was raising about that delivery. 2. If a crate was packed with two cartons of soft drink, this was an error by the team member who packed the crate because the crates were only supposed to take one carton or other bulk item so that the crates did not exceed the maximum allowable weight. If mistakes like this were made by the packing team, my expectation of any CSA in those circumstances and my understanding of the proper procedure to be applied (based on my experience and the training in safe lifting practices that I have undertaken with Coles and my knowledge of Coles' policies) is that the CSA was expected to lift one of the cartons of soft drink out of the crates that had been packed with two cartons and load them into the truck for delivery separately and one at a time. I do not recall the Applicant complaining about there being multiple cartons or him having to repetitively lift them.
The question of whether the multiple cartons involved the Applicant in breaching his restrictions because of repetitive lifting is more contentious. The documentation dealing with repetitive lifting, namely, the Treating Practitioner Work Capacity Checklist, which is of a general nature does not expressly deal with a situation which arose in respect of this particular load on 26 October.
The Checklist deals with lifting limits by reference to a breakdown of percentages per shift. The evidence of Mr Amini was, and we accept, that the activity of lifting from floor to waist of a maximum 15kg should, for example, only occur occasionally, meaning for a third of a shift, and a maximum of lifting of 8kg at a frequency of two thirds of a shift. The meaning of the practitioner's notation made on the assessment form that the Applicant should avoid repetitive lifting in the category identified at or above 8kgs is not clear. What repetitive lifting means in the context of the form breaking down the limits on frequency to occasional, or frequent or constant is also not clear.
The Checklist does not specify that the frequency of at or above 8kg is confined to a delivery, or over a particular period, or to the number of deliveries during the shift. It does not specify if the frequency limitation applies even if interrupted by smaller lesser weight articles being handled.
In respect of the 15kg limit in the incident complained of there was, we are satisfied, a simple solution available to the Applicant. He was expected to, and could, readily remove one of the items and place it in another crate, reducing the weight by half. He provides no explanation as to why he chose not to do so on this occasion.
On the evidence we are not able to conclude that this delivery would have required the Applicant to act beyond his medical restrictions because of repetitive lifting.
The Applicant submits that requiring him to carry out the "partially attempted" delivery was a detriment in the course of his employment given that he had to physically assert himself which had the potential to exacerbate his injury.
The Respondent did not require the Applicant to deliver this order after he raised his concerns. He accepted in his evidence that after he raised his concerns with Mr Mankodi on the day he was told to bring the delivery back to the store, which he did, and that this was in accordance with what he understood the proper process to be where he objected to a delivery where he thought it was in excess of his restrictions.
We do not accept as a matter of substance that the Applicant suffered any real disadvantage or detriment in respect of these events. In circumstances where he was required to adhere to his restrictions he would obviously have to raise with management his concerns and was not required to exceed those limits. Indicating that he regarded the load as requiring him to exceed his limits, and that concern being accepted by the Respondent, did not give rise to a breach of the Act on the basis put forward by him.

Sub-claim 6

The Applicant stated that on 2 January 2019 at 3pm, he returned to the store after completing his delivery run, some 2 hours and 29 minutes late. On return he had a discussion with a colleague named Mardi in the online room about a spare tyre of the vehicle. During the conversation, Ms Bayley observed him and said to the Applicant "Alster, I want you to go and sign-out now", to which the Applicant responded, "That means I cannot talk to any staff?" Ms Bayley did not reply. The Applicant further stated that after the incident, he "felt very isolated and made more depressed".
Ms Bayley denies that she explicitly or impliedly told the Applicant to not talk to his colleagues as apparently understood by the Applicant and now alleged. She further stated that she has no recollection of the Applicant saying "does that mean I cannot talk to any staff?"
Given the evidence, the Applicant urges the Tribunal to find that: 1. Ms Bayley did stop the Applicant from talking with Mardi, particularly when one considers that on this day the Applicant was again late for his shift due to his injury; 2. preventing the Applicant from talking with a colleague was differential treatment that was less favourable compared to a person who did not have the Applicant's injury as they would not have been late returning to the store; 3. the differential treatment was a detriment sustained by the Applicant in his employment (s49D(2)(d) of the Act) or alternatively was discrimination in respect of conditions of his employment (s49D(2)(a) of the Act).
Further, or in the alternative, the Applicant contends that Ms Bayley victimised the Applicant in circumstances where: 1. the Applicant had, in respect of the 26 October 2018, made a complaint to Mr Amini and SafeWork NSW that Ms Bayley breached his medical restrictions; 2. the Applicant had, even prior to 26 October 2018, complained to SafeWork NSW about Ms Bayley, and her conduct was subsequently investigated about a breach on 30 August 2018; 3. Ms Bayley had ongoing performance discussions with the Applicant about his lateness in leaving and returning to the store for his delivery run; 4. those allegations, would have amounted to a contravention of the Act (s50(1)(c); 5. the Applicant suffered a detriment at the hands of Ms Bayley, being a direction during a work conversation to clock off, the implication being that the Applicant was not allowed to discuss work issues with his colleagues.
This complaint is totally without merit. It proceeds on a premise which does not exist, namely an alleged instruction, by way of implication, that the Applicant was not allowed to discuss work issues with his colleagues. This is not what Ms Bayley said or did.
On the Applicant's own account Ms Bayley stated that she wanted him to go and sign out 'now'. This was said to him in circumstances where he was very late in returning to the store. Instead of explaining to Ms Bayley that he was having a discussion with the other CSA about a spare tyre of a vehicle, he elected to misconstrue her request which, in the circumstances, we do not regard as unreasonable. The Applicant further suggested in his reply to Ms Bayley that her comment was directed at his talking to 'any staff', which it was not.
There is no basis for the contention that it was differential treatment of the Applicant. In the absence of evidence it also cannot be accepted that he was late because of his injury. A request to any other CSA to clock off after returning to the store late, for whatever reason, and then having a discussion with another CSA without an explanation as to the purpose of the discussion is more than likely in our view to have attracted the same request from management.
There was no detriment to the Applicant as claimed by reason of the request made of him because the request was not that he was not allowed to discuss work issues with his colleagues.
We also reject the contentions that Ms Bayley's request was in any way linked to what occurred on 26 October 2018, or any previous complaint made by the Applicant about her. Nothing in the encounter described by the Applicant supports such a finding.
It is correct to say that the request was made in circumstances where Ms Bayley was having ongoing discussions with the Applicant about his admitted failure to leave and return to the store for his delivery runs on time. That did not render the request unlawful in any sense.
Contrary to the Applicant's submissions we do not regard it as necessary at the time this was occurring for a manager to enquire whether a discussion was work related. The Applicant clearly could have explained what he was doing instead of misconstruing the manager's request.
The Applicant led evidence from other ex-employees who stated that whilst they were employed by the Respondent as CSAs they had never been told not to talk to colleagues while performing the routine on return of the truck or the routine loading of the truck.
This evidence is of little assistance to us. Ms Bayley did not tell the Applicant he could not talk to colleagues. The witnesses do not refer to, or recognise, the circumstances of the exchange between Ms Bayley and the Applicant that he was very late, that he did not tell her what he was doing, and what the subject matter of his discussion was with one other employee so as to provide a proper basis for comparison.
In respect of the direction not to talk to colleagues, the Applicant contends that the hypothetical comparator is not a CSA that returns 2.5 hours late to the store without the Applicant's disability. It is said that the basis for the Applicant's lateness cannot be divorced from his disability and is connected with his disability and therefore the hypothetical comparator would have to be a person that was not late to the store 2.5 hours. We do not accept that on the evidence this contention can be upheld. The Applicant's own evidence does not attribute to any material degree his lateness in returning to the store for such an extended period on this occasion. He was simply asked to clock off when seen to be talking to another employee well past his designated return time. In addition his late departure from the store, which impacts on the late return to the store, clearly does not identify any question of disability.
The Applicant further argues that this sub-claim amounted to victimisation by Ms Bayley in circumstances where he had made a complaint to Mr Amini and to SafeWork NSW about Ms Bayley and Ms Bayley had ongoing performance discussions with the Applicant about his lateness in leaving and returning to the store.
This claim is also linked to what is the alleged direction that the Applicant was not allowed to discuss work issues with colleagues, a claim we have rejected. The claim on these bases should fail. The Applicant has not established in the evidence any causal link that his complaints about Ms Bayley played any role in this incident.

Sub-claims 7 and 8

These claims relate to what occurred during a meeting on 29 March 2019 in discussions between Ms Heaton, Ms Bayley and the Applicant. The purpose of the meeting was to address the issue of the Applicant being repeatedly late in the performance of his duties. Ms Bayley testified that the Applicant was departing the store late and returning up to 2 hours late from his runs on a regular basis.
Ms Bayley further testified, and we accept, that at about that time the responsibilities of the CSAs were changing because the online delivery team was starting to use other team members to pre-load the delivery trucks so that when the CSAs commenced their shift, they would only need to do the vehicle inspection and other checks before departing on their delivery runs. Those checks could generally be done in 15 minutes. If a truck was not pre-loaded and the CSA was required to load the truck then this would take longer.
One of the issues discussed during this meeting concerned the Applicant's issues with the MDT machine, he claiming that it was still taking him to the wrong addresses. A debate then followed as to whether the Applicant was following the correct procedures and he was told by Ms Heaton that, as had been addressed earlier, he needed to communicate any issues he had to Ms Bayley as there had to be communication with his line managers if he was having difficulties correcting any issues with the MDT.
The Applicant alleges that during this meeting Ms Heaton and Ms Bayley told him not to carry an EFTPOS bag and a spare battery for the scanning unit. They deny that. In respect of the spare battery Ms Bayley told the Applicant to the effect that the Respondent had received new batteries for the MDT navigation system and he could take a spare one with him in case the MDT dies whilst on the road. Ms Bayley denies that she told the Applicant not to take a carry bag or that he could not have a spare battery.
On 20 April 2019 the Applicant sent an email to Ms Heaton.
In the email the Applicant stated that during the meeting that had occurred on 29 March 2019 both Ms Bayley and Ms Heaton "simply wanted me to jump into the van and just drive off". He records that during the meeting he made a request to provide him with more time so he could leave the store on time because the time provided under the new arrangements, a reduced time for departure, was insufficient for him.
The Applicant then states that he listed a number of things that he did on a daily basis and the 7 minutes "you and Leasa" provide is insufficient.
In his email the Applicant then listed 21 items of the daily tasks which he undertook before leaving the store in justification for his lateness and said that it could be seen that it was impractical for him to get all of those activities done within the 7 minute period.
None of the matters set out in the 21 items identified appear to be related to the Applicant's disability. There is no evidence that his disability caused him to take longer to perform those identified tasks.
The Applicant went on to state that during the meeting, when he mentioned some of the listed items contained in the 21 items which the managers had asked him to change, he stated that he had already made changes to comply. Those matters were that he did not need to check his invoices to highlight the EFTPOS transactions and customer's special instructions, that it was not necessary to add ice packs on customer's orders, as this was not the process, and if there was a problem with the cargo temperature that he needed to inform Ms Bayley, also that it was not necessary for him to carry an EFTPOS bag and that, as he was asked, he did not to carry a spare battery with him, the Respondent now having replaced the MDT's with new batteries.
In his email the Applicant stated that at the meeting he was informed that he should go to the bathroom before he clocked on, even though he may not have the urge to do so. His email then states that the managers also mentioned that "if I have gone to the bathroom before signing on, then I shouldn't go to the bathroom between that time and until I have departed the store, unless on odd times I can go to the bathroom before departing the store. Also, he says "you clearly stated that it shouldn't be a daily occurrence. You also mentioned that 9 out of 10 times, it shouldn't be the case."
There is a dispute about this statement by the Applicant in his email. Ms Bayley denies that either she or Ms Heaton said anything to the Applicant to the effect that he could not use the bathroom during a shift as now alleged. She testified that the meeting was about discussing why the Applicant was departing late for his delivery runs in the context of the Applicant using the bathroom on a number of occasions before departure. Ms Heaton said words to the effect of "if you only started the shift 15 minutes ago, couldn't you have gone prior". Ms Bayley denies that she ever said anything to the effect that the Applicant was not permitted to take toilet breaks. Ms Bayley denies that she ever said anything to that effect.
In her evidence Ms Heaton stated that she asked the Applicant whether he could use the bathroom before starting his shift to save time. She says that she reiterated to the Applicant that it was important that he left on time as it would have a flow on effect for deliveries. It did not seem right to her that the Applicant had to use the bathroom so frequently after the start of the shift before departing the store on almost every one of his shifts.
The Applicant further stated in his email in relation to what he claimed Ms Heaton and Ms Bayley had said that he now departed the store without going to the bathroom even though he had a strong urge to go to the bathroom every single day he has worked. He said he had written all the difficulties he was encountering in that regard on the run sheet notes after they both had imposed on him "this ban".
We do not accept the account of the Applicant that he was told not to use the bathroom and we do not accept, on the evidence, that his managers imposed on him "a ban against using the bathroom".
On the evidence we are of the view, and we find that, the purpose of the suggestions being made to the Applicant at this meeting overall, and in respect of the use of the bathroom, was to try and find ways to assist the Applicant in meeting the timeframes in which he was to carry out his duties and the deliveries. A number of positive suggestions were made to aid him in that regard as is outlined above, suggestions which to some degree he appears to have embraced. The discussion concerning his repeated use of the bathroom impacting on his timely departure was to the same effect.
It is also our view that the Respondent did make reasonable allowances to enable the Applicant to perform his duties, both in respect of the runs and loads allocated to him where possible and by the suggestions to him as to tasks he needed not to perform pre-departure.
Subsequent to the meeting, and prior to writing this email, the Applicant had written up on his run sheets difficulty encountered in respect of the use of a bathroom for deliveries on 5 April, 12 April and 17 April 2019. Run sheets are returned at the end of every shift. He stopped at various facilities during a shift to use a bathroom.
On the evidence the Respondent took no steps to in any way admonish the Applicant for what occurred in respect of his use of a bathroom after this meeting and did not even take issue with the fact that the Applicant, on at least one of the stated occasions, spent some time during his shift writing up the issue about his use of the bathroom.
The Applicant urges upon the Tribunal caution in accepting the evidence of Ms Bayley because of her inability to recall certain matters during cross-examination. The Applicant contends that the Tribunal should find given the evidence of the 29 March 2019 meeting and Ms Heaton's diary notes that the Applicant was told by Ms Heaton to limit the use of the toilet prior to departure from the store on odd occasions when no other CSA was required to limit their use of the toilet.
Ms Heaton's diary note of the meeting on 29 March is as follows: Again met with alster around late starts -impacting on delivery times -toilet breaks again an issue I tried advising alster to go to toilet before starting work then as per scheduled breaks, but if necessary to go outside this not an issue. Alster said he does go before he clocks on, then needs to go again with the 15-20 departure time He also mentioned when he breaks schedules he may not need to go. I said this is ok but just try, freshen up as these breaks are scheduled for a reason - safety - stress/tireness allows then to refresh and rejuvenate. I said not every day he should have to go to toilet […] 15 mins that doesn't make sense. Stressed he needs to follow process not different to all CSA. Again alster misunderstands conversation only tending to hear what he wants and part of discussions. I tried reiterating with him the process and expectations nothing more or less than we expect from all csa drivers.
In the circumstances where the Applicant's email of 20 April 2019 does not purport to be a verbatim account of what happened and that Ms Heaton made a diary note, it appears around the time of the meeting although that is not clear, we are comfortable in concluding and when considering a meeting where suggestions were made to assist the Applicant that there was no ban imposed on the Applicant as alleged. We think it is highly improbable that the managers would 'ban' the use of the bathroom if there was a genuine need to do so.
It is also clear that there is no evidence to suggest that this bathroom need on the part of the Applicant was caused by, or in any way related to, the disability upon which he relies for his claims in these proceedings, namely his back injury.
The Applicant also seeks to found a claim of unlawful conduct on the part of the Respondent in respect of this claim on the basis that there was no evidence that other employees, namely Mr Ward, Mr Glanville and Mr Gimenez who each stated in brief statements that they were never prevented from going to the toilet prior to departing the store, and that Ms Heaton had said in cross-examination that the Applicant was the only person in respect of whom the use of toilets was an issue because it would make him late for his deliveries. The Applicant contends that it follows, therefore, that the Applicant received differential treatment that was less favourable than a person without his disability.
In our view, the Applicant was not prevented from going to the bathroom prior to departing the store. A comparison between the Applicant and the three witnesses put forward as suggested by the Applicant is unhelpful in circumstances where there is no evidence that any one of them was repeatedly late in departing the store, or were repeatedly late by reason of performing unnecessary and extensive pre-departure delivery routines.
The contention that the Applicant received differential treatment that was less favourable than a person without his disability is in our view unsustainable. In this particular case the impediment to the performance by the Applicant of his duties in a timely fashion does not appear to be related in any way to his pleaded disability, but to a need on his part to use the bathroom perhaps more frequently than others. The limitation which the Applicant claims Ms Heaton imposed on him so that he could comply with his delivery timeframes so as to bring his claim within s 49B(1)(a) of the Act is said to be in circumstances where his disability was the cause of him persistently returning late to the store and therefore that Ms Heaton had imposed the limitation because his disability. As we have pointed out, Ms Heaton's suggestions that he considered not using the bathroom as often had nothing to do with the Applicant's disability. The need to use the bathroom causing a delay in departure arose not from the Applicant's back injury but from the need to use the bathroom.
We are satisfied that on the evidence the request made by the Applicant to his managers for extra time was not based on his disability but the other issues identified by him including his need to use a bathroom. The Applicant points to the email of 20 April 2019 as to what was discussed during the meeting and that email does not in our view substantiate that the request for extra time was made due to his disability.
We are also not satisfied that there was in fact any material detriment to the Applicant in circumstances where, on his own account, he left the store and when he needed to use a bathroom he did so, even during his normal shift time, and no steps were taken by the Respondent against the Applicant where he had done so.
In respect of the Eighth sub-claim the Applicant urges upon the Tribunal that it should find that: 1. Ms Heaton instructed the Applicant not to carry a spare battery for the MDT or EFTPOS bag and this was not a restriction that was imposed on any other CSA which resulted in the Applicant experiencing delays in completing deliveries and facing an agitated customer. Thus, the Applicant received differential treatment that was less favourable than a CSA without the Applicant's disability; 2. the reason Ms Heaton imposed the restriction on the Applicant not to carry a spare battery for the MDT or EFTPOS bag was due to his late departure from the store, which was in fact caused by his disability; 3. the restriction on the Applicant to not carry a spare battery for the MDT or an EFTPOS bag was a detriment in the course of his employment, or alternatively, was discrimination in the conditions of his employment.
We do not accept that the Applicant was instructed not to carry a spare battery for the MDT or EFTPOS bag. The discussion about those items must be seen in context. The Applicant was raising issues requiring extra time on his part in order to meet his departure times. The managers were making helpful suggestions to the Applicant in order to cut down some of the matters which would enable him to achieve the departure time more readily. We do not accept that this was a restriction of the kind which posed any obligation on the Applicant. There is no suggestion that he had to comply with these suggestions if there were other means by which he could meet the pre-departure requirements within the time frame allowed.
It is contended that this was a restriction that was not imposed on any other CSA. That is not a valid comparison unless it is assumed that the other CSAs were consistently late in departure. The comparison appears to assume that by relieving the Applicant from performing certain pre-departure tasks which other CSAs allegedly carried out he was treated less favourably.
The Applicant further claims that the restriction not to carry a battery for the MDT or EFTPOS bag was due to his late departure from the store which was in fact caused by his disability. We do not accept that the Applicant has made good his case that his late departure from the store was caused by his disability. If anything, on his own case, the late departure was primarily caused by the performance of tasks not required and contributed to by his need to go to the bathroom which was not the disability upon which he relies under the Act.
We also do not accept that the suggestions made to the Applicant in respect of saving time by reference to the MDT or EFTPOS bag was a detriment in the course of his employment. It was a recommendation or suggestion made to assist the Applicant to meet his obligations.

Sub-claim 9

This claim concerns emails which were provided by the Respondent in the context of the conciliation before the Anti-Discrimination Board of the complaint originally made by him giving rise to these proceedings.
In that context, in a letter to the Respondent dated 17 March 2020 and in an email to the Anti-Discrimination Board on 22 June 2020, the Applicant categorically denied ever having received certain of the emails referred to above from Mr Dalgleish, a manager then employed by the Respondent. The Applicant's concerns were promptly escalated internally within the Respondent and an investigation was conducted.
The investigations found no record of those emails in the vault (a permanent storage of emails sent to and from the Respondent's email addresses). As a result of this investigation, the Respondent formed the preliminary view that Mr Dalgleish had fabricated the emails and scheduled a meeting for 24 June 2020 with Mr Dalgleish's direct manager, Mr Mark Smith, and Ms Demi Tacey, the Head of People & Culture for NSW and ACT since May 2016.
At the 24 June 2020 meeting, Mr Dalgleish initially denied fabricating the emails but towards the end of the meeting, he admitted to fabricating one of the emails (the one purporting to have been sent to the Applicant on 8 February 2019). He said he did so because he was so busy and he had forgotten to reach out to the Applicant and close off the complaint and he did not want to let the business down.
At the end of the meeting on 24 June 2020, Mr Dalgleish provided written notice of his resignation. Mr Smith and Ms Tacey had decided to terminate his employment but having regard to certain medical issues and his otherwise exemplary performance record, they decided to accept his resignation. His employment terminated immediately.
The Respondent then took steps to report the matter to NSW Police but were told that a complaint had already been made by the Applicant and the Police were treating it as a civil matter and not pursuing a criminal investigation.
On the evidence the Tribunal would not conclude that a true, genuine or real reason for Mr Dalgleish's conduct towards the Applicant was that he has a disability. Mr Dalgleish's conduct appears to have been motivated out of a concern that he had failed to respond to the Applicant as he had promised to do. His conduct is better seen as a misguided attempt to cover for his own personal failings. In the discussion on 24 June 2020 with managers Mr Dalgleish spoke of feeling under pressure to do the right thing and said that he panicked when he realised he had not closed out an issue (meaning responded to the Applicant's complaint). Although he also sought to shift some of the blame to the Respondent by asserting that the Applicant was seen within the Respondent as a team member who continues to escalate concerns without substance or was someone to be avoided, Ms Tacey denies this and she was not seriously challenged on this issue. We accept the contention by the Respondent that no weight should be given to Mr Dalgleish's comments in this regard and they only illustrate that the reasons for his actions were that he could not take responsibility for having failed in some aspect of his job. We find that the true reasons for Mr Dalgleish's conduct had nothing to do with the Applicant's disability allegation in any other legal proceedings that he had failed to investigate a complaint escalated to him by an employee, he likely would have acted in the same way.
In respect of the victimisation claim, the necessary detriment alleged by the Applicant is not established on the evidence. The only steps the Applicant was required to take to have the Respondent investigate the conduct was to send the Respondent a letter, which itself is not a detriment of a material kind in the context of the proceedings before the Anti-Discrimination Board. Following receipt of the letter, the Respondent took the matter extremely seriously and acted entirely appropriately in promptly and thoroughly investigating the complaint, taking appropriate action in relation to Mr Dalgleish's employment and by taking steps to report the matter to the police and no reliance was placed on any of the emails in question.
The Applicant argues that the detriment to the Applicant included the emotional difficulties involved in writing a letter pointing out that being told, by means of the "email" provided to him during the Board investigation that his complaint, which related to Ms Simon, had been resolved when, as far as he knew, it had not.
In our view this claimed detriment in the context of an investigation of his complaint by the Board where claims and responses often conflict is not such that it amounts to a breach of the Act.

The s 53 Issue

Having concluded against the Applicant that there has been no unlawful discrimination or victimisation by employees of the Respondent no liability should be attached to the Respondent by operation of s 53 of the Act in respect of the incidents and conduct raised by the Applicant.

Conclusion

We recognise that the disability arising from the Applicant's back injury and adherence by him to the restrictions on some of his physical activities was of significant concern to him. However, we are not satisfied that any of the grounds relating to the claims and sub-claims have been made out.
Accordingly, for all the reasons set out above the Application 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: 18 May 2022

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