Secretary, Department of Communities and Justice v Tebb

NCAT Appeal Panel|2020-06-26

Overview

Mr Tebb, who is a court officer with the Department of Communities and Justice, complained to the President of the Anti-Discrimination Board that he had been discriminated against on the grounds of disability and carers' responsibilities (the first complaints). After making those complaints, he also complained that the Department and his supervisor, Mr Watson, had victimised him (the second complaint). The complaints were made under the Anti-Discrimination Act 1977 (NSW) (the Act). The President referred the complaints to the Tribunal.
Because he was not represented by a lawyer, the Tribunal did not require Mr Tebb to file 'points of claim' or any other formal pleading. Instead, the Tribunal directed Mr Tebb to give the Tribunal and the employer "any material on which he relies". In a note to that direction, the Tribunal wrote: Mr Tebb must include in the Outline of Complaint: the nature of the claimed disability, with respect to the allegations of discrimination on the ground of disability and allegation of discrimination on the ground of carers responsibility, the provisions in ss 49D(2) and 49V(2) of the Anti-Discrimination Act 1977 (the Act) on which he relies and whether each allegation is cast as a complaint of 'direct discrimination', 'indirect discrimination' or both; with respect to the complaints of victimisation, the alleged 'detriment' to which he was subjected and the conduct in par (a) to (d) of s 50(1) said to have caused Mr Watson to subject him to the alleged detriment; in respect of each respondent, the order sought under s 108 of the Act.
The Secretary of the Department, who we will call "the employer" was directed to give their material to Mr Tebb and the Tribunal. Mr Tebb was given time to respond. After all the material had been provided, but before a hearing had taken place, the employer applied for the complaints to be dismissed. There were two grounds for that application. First, the complaints are misconceived or lacking in substance. Alternatively, the complaints do not disclose a contravention of the Act. The employer focused almost exclusively on the lacking in substance ground. The Tribunal's power to summarily dismiss a complaint is set out in s 102 of the Act: The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).

Correct name of appellant

Mr Tebb relies on s 49D(2) and s 49V(2) of the Act which make it unlawful for an "employer" to discriminate against an employee on certain grounds. Mr Tebb is an employee in the Department of Communities and Justice. That Department is a Public Service agency: Government Sector Employment Act 2013 (NSW), Sch 1. The head of that agency is the Secretary: Government Sector Employment Act, s 23(1). Under the Government Sector Employment Act, the Secretary of a Department may, subject to that Act, or any other Act or law, "exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to . . . other employees of the Department": s 26(1)(b). That provision is consistent with s 4B of the Anti-Discrimination Act which provides that a reference "to an employer in relation to a Public Service agency, is a reference to the head of the agency."
The effect of these provisions is that the "Secretary, Department of Communities and Justice" is Mr Tebb's employer for the purposes of the Anti-Discrimination Act and that person is the correct appellant in relation to the complaints of disability and carers' responsibilities discrimination. The employer was incorrectly named as State of NSW in the proceedings below. Under s 44 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the State of NSW is removed as a party to these proceedings and the Secretary, Department of Communities and Justice is joined as a party.

Liability of Mr Watson

The President of the Anti-Discrimination Board referred a complaint of victimisation to the Tribunal. Under s 50 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 victimised has done any of the things listed in s 50(1). A "person" includes an "an individual, a corporation and a body corporate or politic": Interpretation Act 1987 (NSW), s 21(1). Consequently, an individual may be personally liable for victimising a fellow employee. The Tribunal removed Daniel Watson, Mr Tebb's supervisor, as a respondent. That decision is not the subject of this appeal. Consequently, the only respondent to the complaint of victimisation is the employer - the Secretary, Department of Communities and Justice.

Statutory framework of direct discrimination and meaning of certain terms

Following a brief summary of the relevant case law, the Tribunal concluded that the term "lacking in substance" means "not reasonably arguable" and that the term "misconceived" means a "misunderstanding of legal principle". The source of the term "not reasonably arguable" is the Court of Appeal's judgment in The Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45]: The powers of the Tribunal to dismiss an application by way of an informal investigation are far-reaching. It is in this context that the phrase "lacking in substance" must be understood. It would be inappropriate, given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than "not reasonably arguable". That is, a meaning not dissimilar to "frivolous, vexatious, misconceived", the words which precede the phrase.
In deciding whether the complaints met this description, the Tribunal took the facts on which Mr Tebb relied "at their highest". Later in the reasons, at [58], the Tribunal highlighted a passage from Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11] where the Appeal Panel of the Administrative Decisions Tribunal stated in relation to a similar legislative provision that: Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred.
The Tribunal elaborated on the summary dismissal power at [55] to [58] highlighting the following circumstances and principles (citations omitted): 1. the power to summarily dismiss must be exercised with caution; 2. when the application challenges the sufficiency of the evidence, rather than the Tribunal's jurisdiction, "it will often be appropriate for [the dismissal] application to be made at the earliest opportunity so as to save time and cost" however, such an application would "most usually be made only after the complainant's case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent's case . . ." 3. it is unusual for there to be direct evidence of discrimination and the outcome of a case will usually depend on what inferences can be drawn from the primary facts as found; 4. factual issues are likely to be affected by evidence in the possession of the respondent and that fact alone may make it inappropriate to dismiss the matter.

Conclusions about causation

The Tribunal understood "the real issue" raised by the employer "to be whether one of the reasons the respondent's managers subjected Mr Tebb to the treatment about which he complains, was because he had, or was thought to have gout." The test for causation is that one of the reasons for any less favourable treatment was Mr Tebb's disability or presumed disability. The Tribunal acknowledged that Mr Tebb had not provided any direct evidence of causation but had submitted that the evidence supports an inference that his disability or carers' responsibilities was a reason for the conduct. The Tribunal also noted that he has issued summonses to the employer to produce material including leave records of comparable employees and to his supervisors and managers to give oral evidence. Those applications had not been determined at the time of the hearing.
Similarly, under the victimisation provisions which apply to the second complaint, Mr Tebb must satisfy the Tribunal that one of the reasons for the alleged "detriment" was that he had made the first complaint. At [54], the Tribunal accepted the employer's submission that missing from the available material is any direct evidence to support the claim that one of the reasons Mr Tebb's managers subjected him to the purported detriments was that he had lodged the first complaint.
The Tribunal addressed the issue of causation in relation to both complaints towards the end of the reasons at [59] to [63]. At [59] the Tribunal found that, at this stage of the proceedings, the complaints lack substance. 59 At this stage of the proceedings, not only is there no direct evidence that one of the reasons the respondent subjected Mr Tebb to the treatment about which he complains was because he had a disability or carers' responsibilities, but Mr Tebb has failed to articulate the basis upon which those inferences can reasonably be drawn from the available material. To establish causation it is not enough that Mr Tebb hold the honest belief that the treatment about which he complains was because he had a disability, carers' responsibility or had complained of discrimination. It follows that, assessed at this stage, the complaints lack substance.
The Tribunal went on to the following reasons for refusing to dismiss the complaints. Nonetheless, for the following reasons, I have decided not to exercise the power to dismiss the complaints. First, Mr Tebb seeks, and has yet to be given the opportunity, to question his managers about key facts in issue, including those relating to the elements of causation and less favourable treatment. Apart from the respondent's denial that the offending conduct does not constitute unlawful discrimination or victimisation, the available material does not disclose, except in general terms, the reasons why the respondent's managers took the particular decisions and actions about which Mr Tebb complains. While there may be, as the respondent contends, a plausible and innocent explanation for each decision made and action taken, until that evidence is given and tested this remains speculative. The converse is equally true. Second, in my view, the interests of justice require that Mr Tebb be given the opportunity of a hearing to make submissions about facts in issue and conclusions to be drawn from the facts found. The NCAT Act requires that a hearing be conducted unless otherwise ordered by the Tribunal: s 50. The Tribunal may only dispense with that requirement if satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged: s 50(3). While s 50 does not operate to prevent the Tribunal from exercising the power to dismiss a complaint at any stage of the proceedings, it nonetheless recognises that some matters cannot adequately be determined "on the papers". In my experience, those matters include where, as here, the law is relatively complex and the applicant is self-represented. Many self-represented parties struggle to put their arguments in writing. My observation is that Mr Tebb falls into this group. In deciding not to exercise the power to dismiss the complaint, I have taken into account the fact that the decision by Mr Tebb's managers to conduct a sick leave review, when confronted with his history of sick leave, seems reasoned and unremarkable. However, that does not answer the question whether the specific steps they took, for example, issuing the directive about work start times, amounts to less favourable treatment, or whether one of the reasons for that directive was Mr Tebb's disability/carers' responsibilities. Nor does it resolve the question of whether one of the reasons for the conduct the subject of the Second Complaint was because Mr Tebb had complained of discrimination. Given these factors and taking into account the instruction that the power to dismiss a complaint must be exercised with caution I am not satisfied that at this stage of proceedings it is appropriate to exercise the power to dismiss the complaint. I note that this decision does not prevent the respondent from bringing a further dismissal application after Mr Tebb has had an opportunity to test the claims made by his managers, and his case is closed.
We set out the Tribunal's reasoning and conclusion about other aspects of the employer's application for dismissal below.

First complaint - discrimination on the ground of disability and carers responsibilities

It is unlawful for an employer to discriminate against an employee on the grounds of disability or carers' responsibilities. Discrimination may be 'direct' or 'indirect'. At [8], the Tribunal set out the matters Mr Tebb would have to establish to prove that he had been discriminated against: (1) that he has, had or is thought to have, or to have had, a disability: ss 4 and 49A of the Act; (2) that the conduct about which he complains falls within s 49D(2) of the Act; (3) that in respect of that conduct, the respondent treated him less favourably than it treated, or would have treated, a person without his disability, real or presumed, in the same circumstances or circumstances that were not materially different (less favourable treatment); and (4) that one of the reasons for any less favourable treatment was Mr Tebb's disability or presumed disability (causation).
The Tribunal went on to note, in relation to discrimination on the ground of carers' responsibilities, that: "Section 49V(2) of the Act (discrimination on the ground of carers' responsibilities) is in similar terms to s 49D(2), save that, to establish less favourable treatment the relevant comparator is a person without carers' responsibilities and, with respect to causation, the reason for any less favourable treatment must be because the complainant has, or is thought to have, carers' responsibilities."
At [11] - [17], the Tribunal outlined the circumstances leading to Mr Tebb's complaints. Mr Tebb's sick leave record for the 12 months prior to April 2018, was a concern for his employer. He was placed on a 3-month Performance Improvement Plan which, among other things, required him to attend work unless he provided a medical certificate and to start work at 9 am. On days when staff meetings were scheduled he was required to start work by 8.45am. Before the Plan came into effect Mr Tebb had been starting work at 9:30am. On 23 April 2018, shortly after this plan was put in place, Mr Tebb made the first complaint to the President of the Anti-Discrimination Board.

Allegations in first complaint and employers' submissions

The Tribunal set out the three allegations Mr Tebb made at [18]: Subjecting him to the detriment of "a disciplinary process, a performance improvement plan for accessing leave to support carers needs and a disability": (Allegation 1). Limiting his "access to the Flexible Working Agreement, a benefit associated with employment": (Allegation 2). Denying his "rights under the award" for his spouse or another person to notify the respondent, in the event he is unable to attend work on account of illness or emergency: (Allegation 3).
The Tribunal then summarised the employer's submissions about each of those allegations at [19]: The respondent contends that with respect to each allegation, Mr Tebb has failed to: (1) identify the substantive provision(s) of the Act he contends the alleged conduct falls within; (2) point to evidence to support his claims that: (a) he had a disability or was thought by his managers to have a disability; (b) he was subjected to less favourable treatment; and (c) one of the reasons for any less favourable treatment was his disability, real or presumed, or his responsibilities as carer.
The Tribunal rejected each of the employer's submissions except in relation to Mr Tebb's complaint of indirect disability or carers' responsibility discrimination.
We summarise the Tribunal's reasoning for each of these conclusions below.

Allegation 1 - placing Mr Tebb on the plan

Applying the short-hand meaning of "lacking in substance" and misconceived, the Tribunal was not satisfied that the decision to place Mr Tebb on the plan was "not reasonably arguable". At [22] the Tribunal found that: "The term 'detriment' in relation to both disability and carers' responsibility discrimination is not defined, but should be understood "broadly to mean something that, objectively assessed, amounts to loss, damage or injury that is real and not trivial."

Allegation 2 - requirement to start work at 8.45 or 9 am

Mr Tebb alleged that the start times amounted to a 'detriment' because they were not in accordance with Flexible Working Agreement that applied to him before he was placed on the plan.
The Tribunal decided that even if the employer was entitled to direct Mr Tebb to start work at a certain time under the Flexible Working Agreement, that part of the complaint was not 'lacking in substance' or misconceived. The Tribunal explained its reasoning at [28]: To amount to a detriment, or a denial of, or a limitation of access to a benefit of employment, it is not necessary to establish that the employer contravened the relevant award or industrial agreement. I am not persuaded that Mr Tebb's contention that the start time directive amounts to a detriment, and/or the denial of, or limitation of access to a benefit of employment, is not reasonably arguable and/or is misconceived.
In relation to allegation 1, the Tribunal concluded that one of the reasons for any less favourable treatment was his disability, real or presumed, or his responsibilities as carer. He was aggrieved by the fact that he had been placed on a plan, that he had to provide a medical certificate and that his work arrangements were not as flexible as they had been. About six weeks later, he lodged the second complaint of victimisation. (what was the detriment).

Allegation 3 - direction to personally contact a manager when taking unplanned leave

To amount to discrimination, the direction that Mr Tebb had to "make personal contact" with a manager when Mr Tebb took unplanned sick leave, must amount either to a 'detriment' or 'the denial of, or limitation of access to a benefit of employment.' Mr Tebb had not articulated how this conduct met those statutory tests: at [29]. The Tribunal came to the following conclusion at [30]: Nonetheless, at this stage of the proceedings, because I have not been referred to any provision of the Award or policy relating to the nature and content of an employee's reporting obligations in the event of an unplanned absence from work, and because on its face the offending directive appears to be unusual, I am not persuaded that it is not reasonably arguable that that directive can be characterised as a detriment.

Claim that he has a disability or is thought to have a disability

At [32], the Tribunal summarises Mr Tebb's evidence and the employer's submissions about the alleged disability - gout. Mr Tebb claims that he suffers from "chronic gout first diagnosed over six years" ago, that it affects his feet and ankles and results in a loss of mobility. In addition, he claims that this fact was known to Mr Watson and other managers. The respondent concedes that there is material to support Mr Tebb's claim to have gout but submits that Mr Tebb has failed to identify how that condition caused him to have a "disability" as defined by the Act. As a consequence, the respondent contends it is prejudiced. In addition, it contends that the allegation of discrimination on the ground of disability lacks substance.
The Tribunal noted that the definition of 'disability' includes "partial loss of a person's bodily . . . functions" and "the malfunction . . of a part of a person's body". On that basis, the Tribunal rejected the employer's submission that the contention that Mr Tebb had a disability within the meaning of the Act is not reasonably arguable.
As for the contention that Mr Tebb's managers thought he had a disability, the Tribunal noted that the only reference to gout in the employer's records that were before the Tribunal is in a 2015 sick leave application. Despite the minimal documentary evidence, the Tribunal understood that it was required to "consider only the evidence and potential inferences favourable to Mr Tebb and to take them at their highest." On that basis, the Tribunal rejected the submission that "there is no material from which the inference could be drawn that Mr Tebb's managers knew he had gout at, or prior to, the 5 April 2018 sick leave review."

Claim that Mr Tebb was subjected to less favourable treatment

The 'less favourable treatment' part of the test for direct discrimination is that in respect of the particular conduct, the respondent treated Mr Tebb less favourably than it treated, or would have treated, a person without his disability, real or presumed, in the same circumstances or circumstances that were not materially different: Anti-Discrimination Act, s 49B(1)(a). The Tribunal noted at [42] to [44] that the comparison can be made with a real or a hypothetical person and that the objective circumstances surrounding Mr Tebb's treatment must be taken into account when making the comparison. At [44], the Tribunal concluded that: Self-evidently, those circumstances would include the nature and type of leave taken by Mr Tebb, relevantly 38.4 unsupported/unplanned leave days over a 12 month period. On the available material and without submissions I am unable to determine whether they are the only relevant circumstances that must be taken into account. Unless and until that occurs, I could not be positively satisfied that the contention that Mr Tebb was afforded less favourable treatment is not reasonably arguable.

Indirect discrimination

Mr Tebb submits that Allegations 2 and 3 amount to indirect discrimination on ground of disability or carers' responsibilities. In the absence of any detail of the factual or legal basis for that claim, the Tribunal concluded that it was lacking in substance: Decision at [49].

Statutory framework of victimisation and meaning of certain terms

Based on s 50 of the Anti-Discrimination Act, the Tribunal identified the following elements of a successful complaint of victimisation (citations omitted): For the allegation of victimisation to be substantiated Mr Tebb must establish on the balance of probabilities, that: 1. the respondent or one of its employees caused him to undergo or experience something; 2. he suffered some consequential detriment; and 3. that he was subjected to that alleged detriment "on the ground" that he did one of the things listed in s 50(1) of the Act.
The Tribunal outlined the nature of the alleged detriment at [52]: In the Second Complaint, Mr Tebb wrote that after lodging the First Complaint on 23 April 2018 and advising Mr Watson that he had done so, he was "immediately subject to detrimental treatment [and] his work was subject to extraordinary scrutiny". In the Outline of Complaint, Mr Tebb listed a series of decisions and actions taken by Mr Watson which he contends, individually and cumulatively, amount to a detriment within the meaning of s 50 of the Act. They include: 1. dissuading Mr Tebb's support person from accompanying him to the Plan review meetings; 2. conducting those meetings in a manner which was unfair, unreasonable and amounted to a denial of procedural fairness; 3. requiring him to attend review meetings with little or no notice; 4. subjecting his work to "extraordinary scrutiny"; and 5. further restricting his "access to employment benefits" by, among other things, extending his finishing time to 4:30pm.
Given the broad meaning of the term detriment, the Tribunal was not persuaded that it is not reasonably arguable that the acts about which Mr Tebb complains amount to a "detriment" within the meaning of s 50 of the Anti-Discrimination Act: at [54].

Nature of appeal

A decision to summarily dismiss (or refuse to summarily dismiss) proceedings is an "interlocutory decision": NCAT Act, s 4. The Appeal Panel must give the employer permission, or 'leave' before it can appeal from an interlocutory decision. The Appeal Panel set out the following principles when considering an application for leave in Collins v Urban [2014] NSWCATAP 17 at [84]: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
The employer put forward several reasons in support of its submissions that the Tribunal should give it permission to appeal. First, each of the grounds of appeal is a question of law and an appeal could be made as of right if the decision was not an interlocutory decision. Secondly, Mr Tebb does not seek leave to adduce any further evidence. Thirdly, the identified errors are errors of principle which result in substantial injustice to the employer. Fourthly, while a decision to dismiss a proceeding summarily involves the exercise of a discretion, in this case the decision determines substantive rights.
If the employer has identified a question of law, and the Tribunal has erred, that is a relevant factor when determining whether to give leave. Similarly, if any errors are errors of principle which result in substantial injustice to the employer, that is also a relevant consideration. However, the other two matters relied on by the employer are not, in our view, relevant considerations in this case.
The fact that Mr Tebb does not seek leave to adduce any further evidence means that his written evidence is closed. But, as the Appeal Panel of the Administrative Decisions Tribunal pointed out in Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11], "the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred."
The fourth point relied on by the employer is not relevant because it is Mr Tebb's substantive rights that are affected, not the employers' rights. We have reached that view despite the observations in Pickering v Yi [2015] NSWCATADAP 161 at [50] - [51]. In that case the Appeal Panel gave leave to appeal because "the consequences to the parties of the Tribunal being in error are sufficiently serious to warrant review before the parties are put to the expense of pursuing or defending the claim." While the Appeal Panel came to that view in the context of that case, we do not consider the consequences to the employer (being put to the expense and inconvenience of defending a claim that has no substance) as justifying granting leave to appeal in this case. Instead, we have focused on the strength of the employer's grounds of appeal.
In determining whether the employer has identified a question of law, we rely on the following passage from House v The King (1936) 55 CLR 499 at 505 where, in a joint judgment, Dixon, Evatt and McTiernan JJ set out the circumstances in which a court would set aside the exercise of a discretion for legal error. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
Their Honours also made the point at 504 - 505 that, " [I]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course."
Courts have distinguished between two kinds of standards on appellate review from a judicial discretion: the "deferential standard" articulated in House v The King (1936) 55 CLR 499 and the "correctness standard" articulated in Warren v Coombes [1979] 142 CLR 531; [1979] HCA 3: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Gageler J at [43].
The deferential standard applies when the "application of the statutory criterion calls for 'value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right'": Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Gageler J at [43] (Footnotes deleted.) The "correctness standard" applies where "the conclusion requires a unique outcome." For example, where the statutory test was whether a corporation had engaged in "conduct that is unconscionable" the High Court held that, on proven facts, a person has either engaged in such conduct or has not: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR [2003] HCA 18. In those circumstances, the "correctness standard" applied and the appellate body may correct any error the original decision maker has made.
In this case, the Tribunal understood s 102 of the Act to involve a two-stage process. First the Tribunal must decide whether it is satisfied that the complaint is, for example, lacking in substance. It is the correctness standard that applies at that stage. Secondly, the Tribunal must decide whether to exercise the discretion to dismiss the complaint. That discretion attracts the deferential standard. The questions identified in House v The King (1936) 55 CLR 499 constitute questions of law in relation to the second stage of the process.
We will assess the grounds of appeal to determine whether they identify a question of law and, if so, whether the Tribunal has erred. We will also consider whether any of the matters identified in Collins v Urban justify giving the employer leave to appeal including whether any errors are errors of principle which result in substantial injustice to the employer.

Employer's submissions

The first ground of appeal was that the Tribunal erred in law by not requiring Mr Tebb to meet an onus of proof, but instead effectively imposing an onus on the employer to disprove the complaints. At [59], the Tribunal found that the complaint lacked substance because "not only is there no direct evidence that one of the reasons the respondent subjected Mr Tebb to the treatment about which he complains was because he had a disability or carers' responsibilities, but Mr Tebb has failed to articulate the basis upon which those inferences can reasonably be drawn from the available material." The employer submitted that this was effectively a finding that Mr Tebb had not met that onus of proof, even taking his case at its highest.
The Tribunal found that Mr Tebb's complaints "lack substance" at [59], but did not exercise the discretion to dismiss the complaints. One reason for that decision was the Tribunal's statement at [46], that Mr Tebb "ought to be given an opportunity to question [the respondent and its officers] about the reasons for their decisions and actions about which he complains". At [60], the Tribunal again noted that Mr Tebb had "yet to be given the opportunity to question the managers about key facts in issue, including those relating to the elements of causation and less favourable treatment."
The employer submitted that Mr Tebb has no automatic right to cross-examine a particular person such as his supervisor, Mr Watson, who has not provided a statement in the proceedings. Such a person can only be compelled to attend if a summons is issued. In addition, the employer submitted that they had provided considerable material as to the rationale for its decisions about Mr Tebb's terms and conditions of employment. The employer characterised the Tribunal's decision as requiring it to disprove the assertions made by Mr Tebb that were found to be lacking in substance. That was said to be contrary to the principle that an applicant bears the onus of proof.

Consideration

The employer is correct that the onus is on the applicant to prove the complaint on the balance of probabilities. There is no onus on a respondent to disprove any part of a complaint. The onus of proving that a complaint lacks substance and should be summarily dismissed, lies on the respondent.
Contrary to the employer's submission, the Tribunal did not misunderstand or misconstrue the requirement for an applicant to prove each element of a complaint on the balance of probabilities. At [8] the Tribunal listed the matters that Mr Tebb must "establish" to prove direct discrimination on the ground of disability in employment. The Tribunal also listed the matters that Mr Tebb must establish to prove direct discrimination on the ground of carers' responsibilities and victimisation at [9] and [ 51].
Secondly, the Tribunal found that the complaints were lacking in substance - that is, taking Mr Tebb's evidence at its highest, the complaints were "not reasonably arguable." On the basis of the written material, Mr Tebb had not provided sufficient evidence to prove his case. That finding related to the 'causation' element of both direct discrimination and victimisation. Nevertheless, the Tribunal exercised the discretion in s 102 not to summarily dismiss the complaints.
One factor which the Tribunal took into account was that Mr Tebb should be given an opportunity to question the employer's witnesses or officers of the employer who he successfully issued summonses. Taking that factor into account does not state or imply that the employer is required to prove that it had not discriminated against or victimised Mr Tebb. The onus remains on Mr Tebb. This ground of appeal does not identify a question of law, an error of principle or any other basis on which we should give permission to appeal.

Employer's submissions

The second ground of appeal was that the Tribunal misconstrued: 1. s 102 of the Act by effectively finding that, while Mr Tebb's complaint lacked substance, the power to dismiss ought not be exercised before the case had been fully heard; 2. s 102 of the Act by interpreting the requirement to take Mr Tebb's evidence at its highest as meaning that only the evidence and potential inferences favourable to Mr Tebb should be considered; and 3. the word "detriment" in relation to direct discrimination on the ground of disability (s 49D(2)(d)); direct discrimination on the ground of carers' responsibilities (s 49V(2)(d)) and victimisation (s 50(1)) by not requiring Mr Tebb to identify any specific loss, damage or injury that was real and not trivial.

Consideration

The employer's first point is based on the Tribunal's observation at [63]: I note that this decision (not to dismiss the complaint) does not prevent the respondent from bringing a further dismissal application after Mr Tebb has had an opportunity to test the claims made by his managers, and his case is closed. (Words in brackets added.)
The employer pointed out that if one of their managers gave evidence, it would not be in Mr Tebb's case, but as part of the employer's case. According to the employer, it cannot be presumed that there will be any further material at the end of Mr Tebb's case on which a different application for summary dismissal could rest. In effect, the Tribunal is requiring the matter to be fully heard. The employer submitted that this approach manifests a misunderstanding of the summary dismissal power. It is also inconsistent with the guiding principle in s 36 of the NCAT Act "to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
The Tribunal observed that the decision refusing to summarily dismiss the complaint does not prevent the employer from making another application. That is a correct statement of the legal position. However, we accept that Mr Tebb's case will be closed after he presents all the evidence in his case. Contrary to the Tribunal's statement, his case is not closed after he has had an opportunity to test the claims made by his managers.
The Tribunal made the comments in [63] after it had concluded that it was not satisfied that it was appropriate to dismiss the complaints. The comments were merely a 'note' about a further opportunity to apply for the complaints to be dismissed. That note was correct in the sense that the employer may make another application after Mr Tebb closes his evidence. The Tribunal's misunderstanding as to when that would occur was not a factor which it took into account in deciding not to summarily dismiss the complaints. Consequently, this ground of appeal does not identify a question of law, an error of principle or any other basis on which we should give permission to appeal.
The second point about the Tribunal's interpretation of s 102 of the Act arises from the following passage in the decision at [38]: In determining the respondent's dismissal application, I am required to consider only the evidence and potential inferences favourable to Mr Tebb and to take them at their highest.
The Tribunal made this statement when rejecting the employer's submission that there was no material from which an inference could be drawn that Mr Tebb's managers knew he had gout. We will assess it in that context.
The employer submitted that there is no authority for the proposition that only evidence and potential inferences favourable to Mr Tebb are to be considered. The employer submitted that taking evidence at its highest means that it is assumed that the claims as asserted in the pleaded case, and the evidence in support of those claims, are made out. Odgers has given a more nuanced definition of that term which accords with our understanding. The term "taking the evidence at its highest" means "assessing probative value at the highest extent to which the evidence could rationally be regarded as affecting the assessment of the probability of the existence of a fact in issue." Odgers S, Uniform Evidence Law, (15th ed, 2020, Pyrmont NSW, Thomson Reuters (Professional) Australia Ltd) at 1286. That evidence may have a low or a high probative value.
The fact in issue was whether Mr Tebb's managers knew he had gout at the sick leave review meeting on 5 April 2018. If they did not know he had gout, presumably they could not have discriminated against him on that ground. The employer provided documentary evidence as directed by the Tribunal and claimed that the only reference to gout was in an application Mr Tebb made for sick leave in August 2015. The Tribunal recorded Mr Tebb's evidence as being that he provided his employer with certificates referring to that condition. In addition, he claimed that in previous sick leave reviews he was required to give details of his conditions to his managers: Decision at [37].
In our view the Tribunal was correct to find that Mr Tebb's complaints did not lack substance because of the absence of documentary proof that the employer knew of Mr Tebb's condition. The reason for that conclusion is firstly because it is not an element of the test for causation under s 49B(1)(a) of the Act, that the employer knew the person had or has a disability. The test is whether disability (as defined in the Act) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. As the Tribunal stated at [39], the real issue was whether one of the reasons the respondent's managers subjected Mr Tebb to the treatment about which he complains was because he had, or was thought to have, gout.
Secondly, the evidence 'at its highest' included evidence that Mr Tebb had claimed that in previous sick leave reviews he was required to give details of his conditions to his managers. It is not necessary for there to be documentary evidence of that claim for it to have some probative value.
The employer submitted that the Tribunal had erred in the way it construed the word "detriment" in s 49D(2)(d) and s 49V(2) of the Act. Under those provisions it is unlawful for an employer to discriminate against an employee on the ground of disability or carers' responsibilities in relation to things such as the terms or conditions of employment the employer affords to the employee or "by subjecting the employee to any other detriment." At [22] of the Decision, the Tribunal noted that the term "detriment" has been interpreted broadly "to mean something that, objectively assessed, amounts to loss, damage or injury that is real and not trivial."
When applying that definition to the facts as found, the Tribunal concluded at [23] and [24] in relation to Allegation 1, that: The conduct the subject of Allegation 1 is the respondent's decision to place Mr Tebb on the Plan. Objectively assessed the terms of the Plan do not appear to be especially onerous. In addition, as noted above, in response to concerns raised by the PSA representative that the title "PIP" carried a negative connotation, the plan was re-named "Management Plan 1.2". Nonetheless, given the broad interpretation of the term "detriment", at this stage of the proceedings I am not persuaded that the proposition advanced by Mr Tebb, that by being placed on the Plan he was subjected to a detriment, is not reasonably arguable or is misconceived.
The Tribunal reached the same conclusion in relation to Allegation 2 (limiting access to the Flexible Working Agreement and directing that he commences work by 9 am) Allegation 3 (directing him to make personal contact with managers for any unplanned absences) and the victimisation complaint (the five particulars of detriment set out at [52] of the Decision). The employer interpreted these conclusions as the Tribunal understanding the word "detriment" not to require Mr Tebb to identify any specific loss, damage or injury that is real not trivial. According to the employer, Mr Tebb has not demonstrated that being placed on the Plan, or any of the requirements set out in the Plan about working hours, had a demonstrable effect on his working conditions. The employer makes the same point about the Tribunal's understanding of the word "detriment" in the victimisation provisions of the Act.
The Tribunal correctly stated the ordinary meaning of the word "detriment". In determining whether the complaint lacked substance because Mr Tebb had not suffered a detriment, the Tribunal was only required to determine whether that element of the complaint was "reasonably arguable". There was no dispute about the fact that Mr Tebb was placed on the Plan or that he was required to attend work during certain hours and at certain times when other employees were not required to attend. Some of the particulars of detriment in relation to the victimisation complaint are less specific but nevertheless constitute allegations which, if proved, would arguably be detrimental to Mr Tebb. In our view the Tribunal was correct to conclude that it was reasonably arguable that those allegations constitute a detriment as defined. The Tribunal made no error of law in reaching that conclusion, nor is there any other basis for giving leave to appeal.

Ground 3 - taking into account an irrelevant consideration

Employer's submissions

The employer submitted that when considering whether to exercise the discretion to dismiss the complaints, the Tribunal relied on s 50 of the NCAT Act (the power to dispense with a hearing) when that consideration was irrelevant to the exercise of the discretion. According to the employer, s 50 says nothing that could be construed as relevant to the exercise of the power to summarily dismiss a complaint of discrimination. There was no issue as to whether a hearing should be dispensed with in relation to the dismissal application, or the substantive application. Consequently, by referring to s 50, the Tribunal took into account an irrelevant consideration.

Consideration

This ground of appeal relates to what is known as the 'relevancy grounds' of appeal: Aronson Groves and Weeks, Judicial Review of Administrative Action, (6th ed, 2017, Law Book Company) at 5.20. When exercising a discretion, a decision maker must take into account mandatory considerations, that is considerations that he or she is "bound to take into account in making that decision": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. Conversely, a decision maker must not take into account forbidden considerations. If the decision maker does either of those things, the decision will be invalid. The High Court recognised the 'relevancy grounds' as constituting questions of law in House v The King (1936) 55 CLR 499.
The Tribunal noted that the NCAT Act requires that a hearing be conducted unless otherwise ordered by the Tribunal: NCAT Act, s 50. The Tribunal may only dispense with that requirement if satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged: s 50(3).
The Tribunal referred to s 50 of the NCAT Act when explaining the second reason for exercising the discretion not to dismiss the complaints even though they were lacking in substance. The second reason was that the interests of justice require that "Mr Tebb be given the opportunity of a hearing to make submissions about facts in issue and conclusions to be drawn from the facts found."
Contrary to the employer's submission, the fact that the Tribunal may dispense with a hearing, was not a consideration the Tribunal took into account in deciding not to summarily dismiss the complaints. When referring to s 50 of the NCAT Act the Tribunal was merely expressing the view that the issues in the substantive case cannot adequately be determined without a hearing. That is because "the law is relatively complex and the applicant is self-represented." The Tribunal expressly acknowledged that s 50 "does not operate to prevent the Tribunal from exercising the power to dismiss a complaint at any stage of the proceedings". In our view, the Tribunal took into account the interests of justice as a relevant consideration, not the existence of s 50 of the NCAT Act. Consequently, this ground of appeal does not identify a question of law or any other basis on which we should give permission to appeal.

Employer's submission

The employer submitted that the Tribunal had made the following two findings of fact for which there was no evidence: 1. the finding at [33] that the respondent had conceded that there was material to support the Applicant's claim to have gout; (the concession finding) and 2. the finding at [20] that the applicant's failure to identify the substantive provisions of the Act on which he relied was an oversight (the oversight finding).

Consideration

If the Tribunal "mistakes the facts" by making a finding of fact for which there is no evidence, that is an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 39 at [91]. At [32], the Tribunal stated that: The respondent concedes that there is material to support Mr Tebb's claim to have gout but submits that Mr Tebb has failed to identify how that condition caused him to have a "disability" as defined by the Act.
The employer submitted that its case was Mr Tebb did not provide any medical evidence that he had gout until after he lodged a complaint of discrimination. It did not concede that there is material to support Mr Tebb's claim to have gout. The only evidence was his assertion in 2015 that he had gout.
Even if the employer did not expressly concede that there is material to support Mr Tebb's claim to have gout, the Tribunal's primary findings of fact were not mistaken or unsupported by the evidence. First, the Tribunal did not find that Mr Tebb has gout. Rather, the Tribunal concluded that the complaint of direct disability discrimination was not lacking in substance because of the insufficiency of evidence about the nature of Mr Tebb's alleged disability. Secondly, there was evidence to support Mr Tebb's assertion that he has gout. That evidence does not have to be medical evidence. Thirdly, the Tribunal's ultimate conclusion following the concession finding was that the definition of "disability" is broad enough to include gout. On that basis the Tribunal rejected the employer's submission that this part of Mr Tebb's complaint lacked substance.
In relation to the oversight finding, Mr Tebb identified the substantive provisions of the Act on which he relied as denying him access or limiting his access to benefits associated with employment (s 49V(2)(b)) and subjecting him to a detriment (s 49V(2)(d)). The Tribunal presumed that it was an oversight on Mr Tebb's part not to articulate, in relation to each separate allegation of carers' responsibility discrimination, which provision of the Act had been breached. The Tribunal also assumed that Mr Tebb had overlooked the need to identify the equivalent provisions for disability discrimination. The employer submitted that the Tribunal's finding that this was an oversight was made without any supporting evidence.
The reason Mr Tebb did not comply with the Tribunal's directions when articulating his complaints, is not a material question of fact and did not require supporting evidence. The only inference to be drawn from the Tribunal's oversight finding is that Mr Tebb did not deliberately fail to comply with the Tribunal's direction. That inference had no effect on the Tribunal's ultimate decision to refuse the application for summary dismissal.
The employer has not identified a question of law in relation to either of these factual findings, nor is there any basis for giving leave to appeal on any other ground.

Orders 1. Under s 44 of the Civil and Administrative Tribunal Act 2013, the State of NSW is removed as a party to these proceedings and the Secretary, Department of Communities and Justice is joined as a party. 2. Leave to appeal from an interlocutory decision 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: 27 August 2020

At a glance

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Judgment (26 paragraphs)

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Legislation Cited (4)

Cases Cited (17)

Cited By (9)