Pursuant to sections 75 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) this Tribunal orders -

1. That the following claims by the Applicant in this proceeding are dismissed -

a) the claim of impairment discrimination to the extent that it relates to alleged conduct of the Respondent occurring before 1 March 2001;

b) all claims except for the claims summarised in items (f), (i), (j), (o), (q), (u), (v), and (w) of the Tribunal's reasons for decision dated 28 November 2002.

2. In all other respects the Respondent's application to dismiss this claim is dismissed.

3. The parties' costs in relation to the Respondent's application under section 75 of the VCAT Act are reserved. The parties have general liberty to apply for those costs on giving reasonable notice to each other.

4. This matter is listed for an Administrative Mention on 19 December 2002. On or before that date the parties must, in writing, advise the Tribunal either that they request a directions hearing to be held or of the form of consent directions that they wish the Tribunal to make.

[1] I am in a position to hand down my decision on this application. My decision is that as a result of the application the proceeding constituted by the complaint is dismissed in part, and in all other respects the respondent's application is dismissed. I now give my reasons.

[2] In May 2002 Mr Hibbert lodged a complaint with the Equal Opportunity Commission ("the Commission") under the Equal Opportunity Act 1995, ("the Equal Opportunity Act"). He claims impairment and industrial activity discrimination in employment and victimisation in breach of that Act. The Commission declined the complaint under s.108(1)(a) of that Act. That permits the Commission to decline a complaint which it considers frivolous, vexatious, misconceived or lacking in substance. Mr Hibbert required the complaint to be referred to VCAT. The Commission did so.

[3] The respondent, Agility Services Pty Ltd ("Agility"), then applied to have the complaint dismissed under s.75 of the Victorian Civil and Administrative Tribunal Act 1998, ("VCAT Act"). That permits the Tribunal to strike out or dismiss a proceeding here constituted by the complaint which is considers frivolous, vexatious, misconceived, lacking in substance or an abuse of process. Agility applies to dismiss the complaint on all these grounds.

[4] In the many cases where an application has been made under s.75 of the VCAT Act the Tribunal has applied propositions in Rabel v. The State Electricity Commission (1998) Vol.1 VR 102. (See for example, Norman v. Australian Red Cross Society, a decision of VCAT dated 27 November 1998).

[5] Those propositions so far as relevant here, are these. The Tribunal must be cautious before granting such an application, and thereby summarily terminating the proceeding and depriving the litigant of the chance of having the case heard in the ordinary course. It should only do so where the respondent satisfies it that for one of the reasons mentioned in s.75, the complainant's case is manifestly hopeless or unsustainable, undoubtedly untenable, or doomed to fail.

[6] The Tribunal should be careful not to treat the complaint as the whole of the complainant's evidence supporting the claim, unless the complainant indicates to the Tribunal that the complaint represents the totality of that evidence.

[7] I should add some comments concerning specific submissions made to me by the parties concerning the operation of s.75.

[8] First it was argued for the complainant that I should be careful not to decide questions of fact on this application, and particularly questions of fact in dispute between the parties. The complainant relied on s.75(4) of the VCAT Act, the effect of which is that, for the purposes of that Act the question of whether an application is frivolous, vexatious, misconceived, lacking in substance or an abuse of process is a question of law. In my view Agility is right in submitting that this provision does not support the complainant's submission. The provision operates for the purposes of the VCAT Act.

[9] It is relevant for the purposes of various provisions of that Act to know whether or not a particular question is a question of law; for example, in determining whether an appeal can be instituted, because appeals can only be instituted on questions of law, or in determining how the Tribunal is to be constituted because the Act requires the Tribunal to be constituted in a particular way when questions of law are to be determined. (See for example ss.107 and 148 of the VCAT Act).

[10] On such an application I can decide whether a case is manifestly unsustainable either in law or in fact and therefore should be dismissed under that section. But one must remember that these applications are not the full hearing of the claim and are generally made at a very early stage in proceedings, often before the claim has been further particularised. This in fact is the case here. Ordinarily, if there is no more than matters which are disputed between the parties the matter should go a full hearing where evidence of them can be given and tested through cross-examination.

[11] Here, however, Agility has included in its submissions, as it was entitled to do, an affidavit by its people and culture manager, Lynne Sinclair. That affidavit exhibits Agility's response to the complaint which it sent to the Commission during the Commission's investigation of the complaint. That response includes voluminous material comprising various correspondence between Mr Hibbert and the company, including a very large number of e-mails. The authors of the e-mails did not give evidence at this hearing. Lynne Sinclair did not give evidence. Nor did Mr Hibbert request Lynne Sinclair to be cross-examined.

[12] There are statements which Mr Hibbert alleges were made by Mr Treglown, Mr Peter James and Mr Doug Ballanger, which I shall mention in detail somewhat later in these reasons and which Agility submits I should give no weight to or entirely disregard. Agility denies those statements were made or at least that they were made in the terms alleged and in the alternative submits that if they were made in those terms, they were made without its authority. Neither party called the makers of the statements to give evidence.

[13] The submissions from Mr Hibbert did not include affidavit material. Mr Hibbert's counsel said, in written and oral submissions to this Tribunal, that if the matter went to a hearing Mr Hibbert would call or give evidence to support the claims in his complaint, including evidence as to the making of the statements I have just mentioned. As I said, Agility submits that I should give no weight to or disregard the matters asserted by Mr Hibbert because they are mere assertions and are not supported by any affidavit. Of course there has been no questioning or cross-examination in relation to any of these matters.

[14] I also should add that there has been no submission made on Mr Hibbert's behalf that the e-mails and other correspondence included in the affidavit from Lynne Sinclair were either not authentic or were not sent in the set of circumstances set out in that correspondence or in those e-mails. Taking all this into account, I approach the application in the following way.

[15] I take Mr Hibbert's case at its highest and assume that he will be able to give evidence or call evidence supporting what he alleges, including the making of the statements by Mr Treglown, Mr Ballanger and Mr James. It is not appropriate that I should deal with matters such as the credibility of the evidence because there has been no direct oral evidence given and no cross-examination. Based on the complaint and the parties' submissions, including all the material in those submissions I now summarise Mr Hibbert's claims. Where the parties are in dispute I indicate this.

[16] In November 1995 Solaris Power Ltd, a company which I call "Solaris" and which at that time employed Mr Hibbert, became partially owned by Australian Gaslight Ltd, which I call "AGL". Solaris was an electricity distribution company involved in the Victorian electricity industry. In January 1998 Solaris became wholly owned by AGL. In June 2000 AGL established Agility as a wholly owned subsidiary to provide services such as meter reading, maintenance and project management to the AGL group.

[17] Mr Hibbert worked as a special meter reader with Solaris and then AGL and in June 2000 Agility became his employer. Agility argues, and it is conceded by Mr Hibbert that to the extent that his claims concern his treatment before June 2000, his claims cannot be against Agility which did not then exist. I am satisfied that the pre-June 2000 claims against Agility should be dismissed as misconceived.

(A) Claims as to the way in which Mr Hibbert's complaints concerning exposure to asbestos were dealt with;

(B) Claims as to the way in which Mr Hibbert's claim for reimbursement of expenses for safety equipment was dealt with;

(C) claims concerning the outsourcing proposals made from May to August of 1999;

(D) Claims that in August 1999 special meter readers were no longer given a separate office area and desks;

(E) Claims concerning the offering of a voluntary departure package in November 1999.

[19] The fact that these claims are dismissed does not of course prevent Mr Hibbert from arguing that the fact and content of his complaints about these matters was a substantial ground on which Agility, through its employers or agents, treated him in the way he alleges.

[20] I now come to the other claims and Agility's responses to them.

[21] Mr Hibbert claims that Agility treated him worse than it did its other employees or its other special meter readers in the following ways -

(F) By not supplying electrical grade safety boots for six months after he first requested them in November 2000 and despite numerous further requests during that period. He says that other special meter readers or employees' requests for safety equipment were handled more promptly. Agility says that the delay was caused by a delay of the suppliers of the boots and that Martin De Boer, its managing director, responded by directing that another supplier be used;

(G) By proposing to outsource the meter reading department in September and October 2000. Agility says that this proposal was never implemented;

(H) By offering in November 2000 and September 2001 a voluntary departure package to Mr Hibbert. There is no dispute that Mr Hibbert did not accept that package or that the package was offered to other, all other meter readers;

(I) By cancelling on 14 March 2001, Mr Hibbert's leave which had already been approved by his team leader on 7 March 2001 and on 20 October 2000. Pre-approved leave of other meter readers, Mr Hibbert says, was not cancelled. Agility says that meter readers were not permitted to take leave in March 2001 because of work backlog and heavy work loads;

(J) By revoking Mr Hibbert's access to Agility's computer system while he was on stress leave between 16 March 2001 and 6 April 2001, and by delaying reinstatement of that access until 16 May 2001. Agility says that there was no deliberate intention to revoke that access but that the access was denied because of the automatic expiry of Mr Hibbert's password while he was absent on sick leave, that the password could only be reinstated by the staff from the company's computer help desk and that this reinstatement occurred within a reasonable period of Mr Hibbert's return to work.;

(K) By proposing in January 2001 to introduce a procedure by which special meter readers recorded or were required to record hours worked. Agility says that this proposal affected all special meter readers and was not implemented;

(L) By discontinuing for nine months from September 2000 occupational health and safety meetings and the issuing of hazard alert report books in which meter readers could report hazard situations. Agility says that these matters are some of the administrative difficulties and delays that occurred while Agility was focused on the decision whether or not to outsource many of its functions, including the meter reading function. It is not disputed that Mr Hibbert was eventually supplied with hazard alert books which indeed were issued to all meter readers in June 2001;

(M) By refusing Mr Hibbert's application made in March 2001 for permission to use his company-supplied motor vehicle for private use. Mr Hibbert says that other meter readers were granted this permission. Agility says, and Mr Hibbert does not dispute, that in December 1996 special meter readers were offered the opportunity to use their company-supplied motor vehicles for private purposes and that all but Mr Hibbert accepted that opportunity. Agility says that this policy was phased out from January 1998 when Agility became full owner of Solaris, so that from that time no new applications for private use of company-supplied motor vehicles by special meter readers were granted, although those permitted to use their company-supplied vehicles for that use before that date, were allowed to continue to do so;

(N) By rejecting Mr Hibbert's request to reverse fringe benefits tax, ("FBT"), amounts deducted from his salary because of what he alleges to be incorrect calculation of the amount shown as the value of relevant benefits. There is no dispute that Mr Hibbert raised this matter with various managers, including Mr De Boer, from May 2001 onwards, that advice from the company's taxation manager was sent to him in August 2001 and that it appears that Mr Hibbert and the company had differing views about the interpretation of the relevant FBT legislation, and that the matter is now being investigated by the Australian Tax Office. Agility says also that FBT liabilities depend on the circumstances of each individual;

(O) By delaying for three weeks in April/May 2001, repairs to Mr Hibbert's company-supplied motor vehicle, although the tester said that its condition was one of the worst in the fleet and in circumstances where other meter readers' motor vehicles were repaired more promptly. Agility says that these motor vehicles were repaired in order of priority according to those needing most repair;

(P) By proposing in October 2001 to change the status of meter readers' employment from full time to permanent part-time. Agility says that this proposal applied to all meter readers and that the proposal was never implemented. The Electrical Trades Union, ("ETU"), applied to the Australian Industrial Relations Commission which handed down a decision and directions on 12 October 2001. That decisions and those directions are in the material before me. Their effect was that the proposal was not to be implemented until the relevant procedures set out in the applicable enterprise agreement were complied with;

(Q) By delaying until 7 January 2002 access to Mr Hibbert's Sydney-based personnel file where Mr Hibbert had requested access to that file on 16 August 2001 and onwards. Agility says, and it is not disputed, that it told Mr Hibbert there was no Sydney-based personnel file but that also it gave him access on 7 January 2002 to his workers compensation file and rehabilitation file, both of which were kept in Sydney;

(R) By not paying Mr Hibbert's proper entitlements to make up pay under the relevant enterprise agreement;

(S) By not permitting Mr Hibbert to return to work on 12 November 2001 when he requested to do so on 9 November 2001. Agility says that at the date of the request it only had a medical certificate from Mr Hibbert's treating doctor certifying him to be unfit for work until 23 November 2001. It says that the new certificate which is in the material before me and is dated 16 November 2001, only certified him fit for alternative duties from 17 November 2001, and that it contained numerous restrictions such as that he was to work from home, that he must not communicate by mobile phone and that he was not permitted to carry out reconnections and disconnections. It says that in accordance with its rehabilitation policy and after consultation with management and union representatives, Mr Hibbert himself and his treating doctor, an appropriate return to work plan was prepared and was implemented on 19 November 2001;

(T) By offering on 11 January 2002 the position of coordinator of special meter readings to Mr Purcell and not giving Mr Hibbert an opportunity to apply for that position. Agility says that the position involved a training and other duties relating to full retail contestability, ("FRC"), which concerned the new consumer choice options recently introduced into the electricity market. Mr Purcell had been involved in a project relating to this matter and was the only person with the necessary qualifications and skills for the position. Agility says that Mr Hibbert does not dispute that no one else was given the opportunity to apply for the position, and that the position involved no additional salary;

(U) By telling Mr Hibbert on 22 January 2002 that he could not have a desk or dedicated computer. Agility says that this was because Mr Hibbert's medical restrictions prevented him from working at the Broadmeadows depot and that in any event computer access was available to meter readers on request;

(V) By giving Mr Hibbert no work to do on 22 January 2002. Agility says that on that day there was little work available of a kind that Mr Hibbert's medical restrictions would permit him to do under his return to work plan. It says that Mr Hibbert also had not contacted his team leader, Mr Izzard, to advise Mr Izzard that he had finished the work allocated to him for the previous day. It says that Mr Izzard in any event organised work for Mr Hibbert later in that day;

(W) By issuing to Mr Hibbert a final warning dated 28 February 2002. That letter is in the material before me. In summary, the reasons it gives for the warning are -

* the large number of complaints made by Mr Hibbert;

* the large numbers of issues dealt with in each complaint;

* the requirement by Mr Hibbert that there be immediate responses to those complaints;

* the repetition of those complaints even after they had been dealt with by the company;

* the inappropriate escalation of complaints, for example by writing to people such as the company's board of directors, the Premier and the Minister for WorkCover;

* the continued failure to use established grievance procedures;

* the making of personal defamatory attacks on the characters of some employees;

* the abuse of the grievance system and the failure to comply with reasonable directions such as to phone rather than e-mail team leader Izzard at the end of each working day on the period when Mr Hibbert was able to work under medical restriction.

[22] From the material exhibited to the St Clair affidavit, it appears that Mr Hibbert was absent on sick leave from 8 to 24 February 2002. He was requested by

e-mail dated 14 February 2002 to attend a meeting at which management and union representatives would be present and representatives also of his own choice. The meeting was to discuss and obtain company responses to Mr Hibbert's various grievances. The meeting was originally scheduled for 19 February 2002, but at Mr Hibbert's request was postponed. A new date was scheduled for 25 February 2002. On 22 February 2002 Mr Hibbert wrote to the company that his treating doctor had certified him unfit to attend the meeting. The final warning letter sets out this background.

[23] Mr Hibbert claims that this alleged treatment by Agility is based on his industrial activity, his impairments and the fact that he had complained of discrimination to Agility, or on some or all of these three things.

[24] The matters on which he relies to constitute industrial activity are these: his active membership of the ETU combined with the following -

* his continuing complaints to company management, directors and others such as WorkCover, WorkSafe and other authorities about the matters listed in the items numbered (A) to (V), and about other matters related to the workplace such as dangerous doors;

* his involvement of the ETU by sending to the ETU copies of these complaints; in fact it appears from the material included in the submissions that the copies were sent to union shop stewards;

* the fact that he was known to company staff as being active in the ways I have just mentioned;

* his request for the ETU to intervene on various occasions in circumstances where it did intervene. Examples are the proposal to introduce work recording of hours for special meter readers, the lack of hazard report books and the issue of make up pay;

* his raising of various workplace issues with management in circumstances where he told management that they affected him and other named employees. His e-mails mentioning certain named employees such as Brian Fawkes are in the material before me. That is an example, an illustration of this matter;

* his seeking of union advice on workplace issues raised with him by other company employees;

* his participation in a productivity group formed to discuss ways to improve staff productivity and comprising company employees and union and management representatives, and his resignation from that group after informing company management that the process was in his view not genuine.

[25] He relies on the following to constitute impairments: stress and anxiety; injuries resulting from alleged exposure to asbestos and a neck injury. In respect of these he has made WorkCover claims during the period May 2001 to February 2002. The stress claim made in May 2001 and the neck injury claim were accepted. The asbestos exposure injury claim and a second stress claim made in February 2002 were rejected. There is also a mention of sick leave taken in March and April 2001.

[26] The complaints of discrimination on which he relies to found his claim of victimisation are those made to company managers from May 2001 onwards. Examples of these are in the e-mails in the material before me. It is not in dispute that the e-mails in this material raise the matter certainly of industrial activity discrimination, but it is also not in dispute that these are not all of the e-mails sent by Mr Hibbert to Agility.

[27] As evidence that Agility was aware of these matters and that these matters were bases on which it treated him in the ways alleged in items (A) to (W), Mr Hibbert relies on statements which he says were made on Agility's behalf. I have explained how I treat these statements for the purposes only of this application at the beginning of my reasons for decision.

[28] The alleged statements are these. First there is a statement allegedly made by Bill Treglown, a consultant to the company, on 20 November 2000, that the meter readers with injuries were no good to the company and the company wanted them out.

[29] Second, there is a statement allegedly made on 13 August 2001 by team leader Peter James which is said to imply that Mr Hibbert and two other employees on WorkCover were colluding in claims for stress-related illness.

[30] I should say in respect of the first statement I mentioned that it is denied by Agility, and it is said that the statement related to outsourcing and was a statement, therefore, that meter readers would be out of the business because it would be outsourced. Also, it said that even if the statement were made it is made without authority.

[31] As far as the second statement is concerned the company denies that it was made and says that it was proper to investigate WorkCover claims made and that all that was done was merely to point to the similarity of the claims and the grievances raised.

[32] Third, there are alleged statements made by team leader Izzard on 9 November 2001 that the company could not meet Mr Hibbert's return to work conditions, and again on 15 November 2001, that there was no work for Mr Hibbert in meter reading.

[33] Fourth, there is an alleged statement by a consultant to the company, Doug Ballanger, allegedly made on 14 November 2001, that it was time for AGL to even things up with Mr Hibbert over the asbestos and that Mr Hibbert would never return to work.

[34] I now come to Agility's submissions. Agility first says that the matters I have mentioned as relied on by Mr Hibbert to constitute industrial activity are incapable of constituting industrial activity within the meaning of the Equal Opportunity Act. Under s.4 of that Act, "industrial activity" relevantly means -

"(a) being a member of, or joining... an industrial organisation;

(b) participating in... a lawful activity organised or promoted by an industrial organisation".

[35] "Industrial organisation" is defined as among other things an organisation of employees. The only organisation referred to by Mr Hibbert is his union, the ETU.

[36] Agility argues that there is no lawful activity in which Mr Hibbert was participating and which was organised or promoted by the ETU. In Dickinson v. Shire of Yarra Ranges, a decision of VCAT dated 16 April 2000, I said that the word "promoted" had a very wide meaning. In my view it can include furthering, encouraging, assisting, supporting and becoming involved in an activity. I am not prepared to say that the activities, as I have earlier stated them and which are relied on Mr Hibbert, are incapable of constituting industrial activity. Whether they do in fact constitute industrial activity is matter for the full hearing.

[37] Agility next argues that there is no link between this attribute and the conduct I have mentioned. To succeed in this argument Agility must satisfy me that Mr Hibbert's claim is manifestly unsustainable because there is no such link. That is, that Mr Hibbert's claim that industrial activity was a substantial ground for the company's conduct is doomed to fail.

[38] It must be remembered that for the purposes of direct discrimination under s.8 of the Equal Opportunity Act, the attribute need not be the dominant or the sole reason for the relevant conduct. It need only be a substantial reason. On the materials I have summarised Agility has not satisfied me that the claim is manifestly hopeless on this ground. There are many disputed matters which should go to a hearing where evidence can be heard and tested.

[39] Agility makes a similar argument concerning the claim of impairment-based discrimination. It does not say that the matters which I have earlier listed are incapable of constituting impairments within the meaning of the Equal Opportunity Act. It says that the claim is manifestly hopeless because there is no link between those impairments and the company's conduct. Except for one matter I come to the same conclusion as I did in respect of the industrial activity-based claim and for the same reasons.

[40] The claim should not be struck out or dismissed at this stage on these grounds. The exception is the claim of impairment discrimination to the extent that is made concerning conduct occurring before March 2001. There is nothing in Mr Hibbert's material to suggest that he makes claims concerning impairments existing or known by Agility to exist before that date. Accordingly, under s.75 of the VCAT Act, I dismiss that part of the impairment discrimination claim.

[41] Agility then says that the claim of victimisation is manifestly unsustainable because there is no link between the discrimination complaints made by Mr Hibbert and the company's conduct. Again, under s.97 of the Equal Opportunity Act, the complaints or allegations of discrimination need only be a substantial reason for the relevant conduct and need not be the sole or dominant reason for that conduct. I reach the same conclusion concerning this claim as I did in respect of the industrial activity discrimination claim, and for the same reasons. I also note that the letter of final warning is mostly concerned with the complaints made by Mr Hibbert and with various aspects of those complaints, and names that matter as being a reason for the warning.

[42] Agility next argues that many of the claims are incapable of constituting direct discrimination because all company special meter readers or meter readers, irrespective of whether they possessed the attribute of industrial activity or did not, whether they had impairments or did not, were treated in the same way. Mr Hibbert is not arguing that the same treatment of him and of others is somehow capable of constituting less favourable treatment of himself. He is arguing that he is treated, or he was treated worse than other company employees or special meter readers in the same or similar circumstances.

[43] I agree in part with Agility's submission. I am satisfied that Agility treated Mr Hibbert and other special meter readers in the same way in respect of the claims in items (G), (outsourcing proposals), (H), (voluntary departure packages), (K), (the work recording procedures), (L), (discontinuance of Occupational Health and Safety meetings and hazard alert books), (M), (private use of motor vehicles), (P), (changes of employment status to permanent part-time), and (T), (the special meter reading coordinator position).

[44] Agility argues then that some of the claims are an abuse of process because they have been or are being, or should be, dealt with in another forum. I agree in part with this submission. The claim in item (N), (FBT), in my view, falls into this category. In my view this claim is really an issue as to differing interpretations of the relevant FBT legislation. The legislation is Commonwealth legislation in respect of which this Tribunal has no jurisdiction. The issue is under investigation by the Australian Tax Office. It would be an abuse of process to litigate it here.

[45] Claim (R), (make up pay entitlements), should in my view be pursued under the procedures in place under the relevant enterprise agreement or Workplace Relations Act 1996 (Cth). This Tribunal has no jurisdiction under that agreement or that Act and it would be an abuse of process to permit this claim to continue.

[46] Agility then argues that I should dismiss the claims because they are old, irrelevant to the present time, trivial or already dealt with. I take this last ground to mean that Mr Hibbert has suffered no detriment because the issues raised by him have been already addressed. I do not agree with Agility's submissions concerning delay and matters not being relevant to the present.

[47] On a reading of the complaint and submissions as a whole, Mr Hibbert claims that there is a pattern of continuing discrimination against him. The last alleged event in this pattern was the final warning, dated 28 February 2002. The complaint was lodged with the Commission less than three months afterwards. In these circumstances I am not prepared to say that there has been delay of a kind which would constitute an abuse of process.

[48] Agility, I note, did not apply under s.76 of the VCAT Act to have the matter struck out for want of prosecution. I also note that the Commission, although it declined the complaint for other reasons, did not decline it under s.108(1)(c) which relates to complaints lodged more than 12 months after the relevant alleged breach occurred.

[49] As far as relevance to the present time is concerned, there is no requirement under the Equal Opportunity Act that a discrimination claim must somehow have some ongoing relevance to the present time. It follows that I do not accept this submission of Agility.

[50] As far as the question of detriment is concerned, it would appear that Mr Hibbert will claim that the alleged conduct of Agility constituted a detriment to him in his employment and that Agility has therefore discriminated against him by subjecting him to a detriment in breach of s.14(d) of the Equal Opportunity Act.

[51] In my view delay by Agility in taking action requested by Mr Hibbert which is a key allegation in a number of his claims, is not incapable of constituting a detriment to him, even though the action requested by him may eventually have been taken. However, in one respect I agree with Agility that Mr Hibbert has suffered no real detriment. There has therefore been no breach of s.14(d).

[52] This is claim (S), (failure to permit return to work on 12 November 2001). I am satisfied that the failure to permit Mr Hibbert to return to work where there was no return to work plan in place which addressed the many medical restrictions to which he was at that time subject, is incapable of constituting any real detriment to him in circumstances where a week later and after consultation on return to work plan, he was permitted to return to work. This claim should therefore be dismissed.

[53] I am not satisfied that the surviving claims are trivial. They are claims that end with Mr Hibbert being given a final warning, with the next step being termination of his employment. My decision is then that the complaint is dismissed except for the claims in items (F), (I), (J), (O), (Q), (U), (V) and (W) as I summarised in these reasons. I also dismiss the claim of impairment discrimination to the extent that it relates to conduct of Agility occurring before March 2001.

[54] I note that Agility denies breach of the Equal Opportunity Act and disputes most of Mr Hibbert's assertions. The surviving claim should go to a full hearing where these matters can be the subject of evidence and that evidence can be tested.