James v Department of Justice

NCAT Administrative and Equal Opportunity|2019-12-18

Background

The applicant complains of disability discrimination and victimisation in employment by her employer, the respondent contrary to the Anti-Discrimination Act 1977. In brief the applicant alleges the respondent: 1. Failed to consider or assess her application for reasonable adjustment with regard to her disability; 2. Refused her applications for transfer at grade and acting in higher duties; and 3. Victimised her because she previously lodged complaints of discrimination with the Anti-Discrimination Board and in this Tribunal.
On 12 December 2019 the respondent wrote to the applicant following a fitness for duty assessment concerning the applicant. The assessment was arranged to assess her fitness to return to her substantive position from which she had been absent for more than 2 years.
The assessment found that she was fit to return to work subject to certain conditions and recommendations. These included: 1. Incorporating her treating specialist's views into her return to work plan; 2. Giving consideration to not having her line manager involved in return to work planning; 3. A graduated return to work with a liaison person available.
The letter from the applicant's employer proposed: 1. a mediation as part of her return to work; 2. Implementation of a performance plan which included "behavioural expectations based on observations made by the independent investigator… regarding conduct, behaviour, workplace and inter-personal relationships."
The independent investigator referred to, produced an investigation report into workplace grievances, referred to as the "OCM report".

Issues for determination

The Tribunal has power to make interim orders under s105 of the Anti-Discrimination Act: "105 Interim orders The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order: (a) to preserve the status quo between the parties to the complaint, or (b) to preserve the rights of the parties to the complaint, or (c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred, pending determination of the matter the subject of the complaint. (2) For the avoidance of doubt, section 62 of the Civil and Administrative Tribunal Act 2013 applies to an interim order of the Tribunal in the same way as it applies to a general decision of the Tribunal."
In Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 the Appeal Panel held that the rights of the parties will often be the "right" which the applicant seeks to vindicate at the hearing; and if that right may be destroyed, or substantially impaired, between the application and the final determination of the proceedings, an interim order may be justified (at [18-19]). "In our view, when determining whether or not to make an interim order, the Tribunal should examine the connection between the form of interim relief, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action. This thinking was encapsulated by N Rees, K Lindsay and S Rice, in Australian Anti-Discrimination Law, Text, Cases and Materials, the Federation Press, 2008, at p 690, where the two overlapping purposes of s 105 (and similar provisions throughout Australia) were identified as: . . .first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint.
As to the meaning of "status quo", the Appeal Panel concluded that that may be the state of affairs that existed at some time other than at the time the application for interim relief was made: at [23]. It said: "In most cases the status quo needs to be in existence when the application is made because a change in the status quo will mean that the 'damage' has already been done and is not reversible. For example, in other contexts if property is sold, a company wound up or a trade mark breached, nothing can be done straight away to remedy the situation. On the other hand an employer may be able to reverse a decision to dismiss an employee or change their terms or conditions of employment. Although the principles applicable to interlocutory injunctions do not govern applications under s 105, in our view we should apply the common law meaning of preserving or maintaining the status quo as outlined above when interpreting s 105. That interpretation is consistent with the language and purpose of the provision." It cited Liquorland (Aust) Pty Ltd v Anghie [2001] VSC 362, in which Warren J held: "It follows that the status quo is not necessarily constituted by the state of affairs in the period immediately before the filing of the writ or application, and what constitutes the status quo is a matter that must be determined based on the facts of each case and a careful and commonsense exercise of the court's discretion." ([42])
It held however that the Tribunal does not have power "at large" to make interlocutory orders to preserve "any state of affair or every legal, equitable or statutory right a party to a complaint of discrimination may have": "The power is limited by the language and purpose of s 105 to making orders affecting or relating to the statutory rights of the parties under the AD Act. The application must be for one of the purposes identified at [18] above and there must be 'an appropriate connection between the form of interim relief that is sought, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action': Smith v University of Ballarat (2006) 229 ALR 343; [2006] FCA 148 at [24]."
While each of the principles in s 105(1)(a),(b) and (c) are expressed in the alternative, the Appeal Panel in Dhillon held at [12] that the principles applicable to interlocutory injunctions provide useful guidance. Those principles are first, whether the plaintiff has made out a prima facie case, and secondly whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted: Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46
The High Court has emphasised that there is no inflexible rule as to the extent to which the legal merits of a case must be examined before determining whether to make an interim order: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [18]. It depends on the nature of the dispute.

The parties' submissions

The applicant submits that the interim orders she seeks are justified because: 1. The OCM report in her view was inaccurate and a form of victimisation; 2. The respondent is putting obstacles in the way of her return to work; and 3. She should only have to do what the assessment said was necessary.
She is not opposed to taking part in mediation although she submits it is not necessary.
The respondent submits that the Tribunal has no jurisdiction to make the orders sought because: 1. Determining the validity or otherwise of the report is outside the Tribunal's jurisdiction; 2. Even if the Tribunal determined that the report was a form of victimisation as alleged by the applicant, this would not mean that the respondent could not rely on the observations in the report; 3. The applicant is seeking specific performance of a contract of employment, which should not be granted as it would require continual supervision by the Tribunal.
It also submits that s 105 does not allow the Tribunal to compel the respondent to act in the manner required, as the orders sought do not maintain the status quo and there is no basis for any claim that the respondent is in breach of the Act or any other legislation.
Finally it submits that the application is premature as the respondent has not yet formulated the performance plan.

Legal merits of the case

It should be noted that the applicant has lodged an application to amend her Points of Claim which had not been heard or determined as at the date of hearing of her application for interim orders. Therefore the Points of Claim referred to below are those filed on 29 April 2019.
The applicant's Points of Claim states that the OCM report was a form of victimisation in retribution for pursuing proceedings under the Anti-Discrimination Act in this Tribunal in 2017 which were decided in favour of the applicant, contrary to ss 50 and 53 of the Anti-Discrimination Act, because: 1. It omitted to deal with her grievance dated 11 September 2017; 2. The report is largely inaccurate and biased against the applicant; 3. The applicant did not receive procedural fairness in relation to the investigation and has not received full access to the report.
There are other actions of the respondent which the applicant also claims constituted victimisation, such as failing to provide her with promotional opportunities, and differential treatment. Under s 50(1) it is unlawful for a person to subject another person to any detriment in any circumstances on the ground that the person victimised has brought proceedings against the discriminator or any other person under this Act.
In addition, the applicant claims that the respondent discriminated against her on the grounds of her disability contrary to s 49(1)(a) to (d) inclusive. As s 49 deals with superannuation this must be an error. The respondent has assumed in its Points of Defence that this should refer to s49B(1)(b) and s 49D(2)(d). The applicant has not apparently disputed this.
Section 49B(1)(b) provides: "(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator - … (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."
Section 49D(2)(d) provides: "It is unlawful for an employer to discriminate against an employee on the ground of disability - … (d) by subjecting the employee to any other detriment."
The word "detriment" in the context of s 50(1) of the Act means "loss, damage or injury" that is "real and not trivial" (see Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,146). The report concerned an investigation into her grievances, which were found to be unsubstantiated. The respondent states that no disciplinary action is intended to be taken against her as a result of the report. While I do not have access to all the evidence to be filed at this stage, I am not satisfied that a detriment which is attributable to the report has been established on a prima facie basis as there is no evident loss, damage or injury suffered as a result of or as part of the report.
With regard to the other matters raised in the Points of Claim, the claimed disability apparently relates to the applicant's mental health but is not expressly stated. The detriment under s 49D(2)(d) is said to be denial of access to opportunities for promotion, transfer or training. If this were established it could amount to a breach of the Act. While there is dispute over the legal merits of the disability discrimination claim, I am satisfied that a prima facie case exists.

Balance of convenience

The applicant has not been in her substantive role for more than two years. It is not clear that this is wholly attributable to the conduct of the respondent, as she has been on workers compensation leave. The inconvenience or injury she would suffer if an interim order is not granted is that she would continue in a lower graded role until the process of mediation and performance planning was completed. The applicant says she is losing the opportunity to use her supervisory abilities in her current role. There is no evidence of financial loss. However if there were and the applicant was successful, the Tribunal could make an order compensating her for financial loss.
From the respondent's point of view, if the interim orders are granted the process of returning the applicant to her substantive role would be prejudiced and may be delayed.
It may take months for the complaints to be finally determined.

Consideration

While there is a general principle in employment law that a court will not order specific performance of a contract, that does not apply in discrimination law if the statutory requirements are met, as the statutory provision concerning interim orders goes beyond the common law (Chris Ronalds and Elizabeth Raper, Discrimination Law and Practice, 4th edition, Federation Press, 2012, p.195).
The respondent has commenced the process to allow the applicant to return to her substantive position. I am not satisfied that the balance of convenience favours the making of Order 1 and in addition the wording of the order makes it unclear what the respondent is expected to do.
I am not satisfied that I should make Order 2 as in my view the applicant has not established a prima facie case that the OCM report was a form of victimisation.
Orders 3 and 4 require the respondent to act in accordance with the medical advice and its own policies. These matters are outside the jurisdiction of the Tribunal as they do not either: 1. preserve the status quo between the parties; 2. preserve the rights of the parties to the complaint, or 3. return the parties to the circumstances they were in before the alleged discriminatory conduct.

Orders 1. The applicant's application for interim orders is refused.

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: 16 January 2020

At a glance

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Judgment (9 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Cited By (1)