FINAL WRITTEN SUBMISSIONS RECEIVED 30 OCTOBER AND 23 NOVEMBER 2015

Discrimination - Equal opportunity - Direct discrimination - Impairment - Employment - Employment as vehicle salesperson - Victimisation - Complainant seriously injured at work with previous employer - Previous employer also engaged in vehicle sales - Workers compensation claims included Post Traumatic Stress Disorder (PTSD) - PTSD triggered by events in vehicle salesroom - Whether PTSD an impairment - Applicant suffered severe symptoms of PTSD - Applicant's performance at work declined - Whether summary dismissal and related acts occurred 'on the ground of' that impairment - Whether causative link established - Intention and extent of knowledge of PTSD by respondent - Job application form seeking disclosure of relevant injuries and workers compensation claims - When and how much of PTSD applicant disclosed - Applicant failed to disclose PTSD until after written warning given by employer - Applicant failed to disclose sufficient information about his PTSD in any case - Sufficient disclosure would raise issue of whether applicant incapable of performing inherent duties of his job - Whether open to employer to form perception of conduct of applicant warranting summary dismissal - Whether comparable employee would be similarly treated - Applicant failed to prove relevant acts were discrimination against him on the ground of his impairment - Observations on limited jurisdiction of the Tribunal to conduct a review of industrial or contractual matters - Whether victimisation complaint valid as it overlapped with previous victimisation complaint that was withdrawn - Victimisation complaint dismissed for lack of proof - Costs - Costs in equal opportunity matters - Costs reserved because of disruptive and unreasonable behaviour of applicant and because applicant made serious but unsubstantiated claims against respondent

Equal Opportunity Act 1984 (WA), s 4(1), s 27A, s 35A(1), s 35A(2), s 35B(2)(d), s 35M, s 66A, s 66A(I), s 66B, s 66B2, s 66Q, s 67, s 83A, s 89, s 90

Complaints of discrimination and victimisation dismissed; costs reserved

Mr Nigel Smith, the applicant in these proceedings, is a motor vehicle salesperson. In January 2014, he lodged a claim of discrimination with the Equal Opportunity Commission in relation to his employment as a vehicle salesperson with Mr Joe Crisafio, a Dealer Principal who was the respondent in these proceedings. Mr Smith alleged that he had been adversely discriminated against 'on the ground' of an impairment. He went as far as saying that his employer deliberately inflicted 'torture' on him, knowing of his impairment. Mr Smith suffers from the effects of Post Traumatic Stress Disorder (PTSD), which is a psychological impairment or disability recognised in anti­discrimination law.

Mr Smith suffered serious injuries in another vehicle sales workplace accident in 2011. He was injured when a vehicle moved forward whilst he was under an open bonnet. Besides various physical injuries (which still cause Mr Smith pain, particularly as regards his back) he is afflicted with, amongst other things, flashbacks, anxiety, panic attacks and depression. These injuries resulted in a workers compensation claim which was still on foot at the time that Mr Smith commenced employment with Mr Crisafio. Mr Smith alleged that he told Mr Crisafio's manager at the time of his job interview that he suffered from PTSD. The Tribunal found against this claim, agreeing with the respondent that the first time that the employer became aware of Mr Smith's PTSD was after Mr Smith had received a written warning about his work performance and attitude and he disclosed his PTSD to his manager.

In fact, at the time of his job interview, Mr Smith was suffering from what his examining clinicians described as severe symptoms of PTSD, with extremely high levels of depression and anxiety. He was recommended for immediate hospitalisation. It was specifically predicted that Mr Smith would be at risk of an attack of his PTSD symptoms if, for example, he went near an open vehicle bonnet in the workplace. This scenario eventuated whilst working for Mr Crisafio and Mr Smith had to leave work temporarily. Normal showroom activities could cause Mr Smith to become angry, and he suffered stress and anxiety. Mr Smith had lost four jobs immediately before this job as he could not survive the probation periods because of the effects of his PTSD. The Tribunal found that none of this was disclosed to his new employer.

Nevertheless, with psychotherapy and medication, Mr Smith initially managed to hold onto this job and was, after a few weeks, promoted to second in charge to the manager. When he is not ill Mr Smith is, apparently, a very good salesperson. However, unsurprisingly and predictably, given past events, his work performance declined over time and there were disputes over pay, performance and his duties, leading to the issue to him of the written warning. After the warning, Mr Smith's work did not improve and he felt that he was being unfairly singled out, isolated and was losing out on contacts ('leads' to customers).

Mr Smith filled in an employment application form at the time of his interview but did not disclose either his injuries or his workers compensation claim. The Tribunal found that Mr Smith had, in effect, a duty to adequately disclose these matters, particularly the full extent of his symptoms, as they directly affected his ability to handle the inherent requirements of his new job. The Tribunal found that Mr Smith never sufficiently disclosed to his employer his full symptoms. Without relevant knowledge of an impairment, an employer cannot be guilty of discrimination. Moreover, here there were no acts or omissions of the employer that were done 'on the ground of' Mr Smith's impairment and Mr Smith was treated the same as any other comparable employee who was manifesting a poor work attitude and demeanour.

Mr Smith was summarily dismissed for absenting himself from work with insufficient explanation or permission, taking company data away, and manifesting an intention not to be bound by his contract by apparently clearing out his desk. Mr Smith took his company car and did not return urgent calls to Mr Crisafio. The Tribunal found that there was sufficient material, in the circumstances, to support the employer forming such an opinion. The circumstances included the declining work performance of Mr Smith. Whether this was legally correct as a contractual or industrial matter was irrelevant to these proceedings. In fact, on the day of his summary dismissal, Mr Smith was having a severe panic attack and was seeking urgent medical treatment and was possibly going to work from home later. His attack and his sudden departure were, however, the culmination of a deteriorating workplace environment, a process that had started long before Mr Smith belatedly disclosed some of his PTSD symptoms.

Mr Smith was unsuccessful in both his discrimination and victimisation complaints. As to the latter, the Tribunal expressed doubt whether it was, in any event, a valid claim, in that it did not appear to conform with the relevant legislation regulating previously withdrawn claims. (Mr Smith had unconditionally withdrawn an earlier victimisation complaint which appeared to overlap with the timeframe of his second complaint.) In any case, the evidence (such as it was) supporting the claim of victimisation was extremely weak, based on the hearsay evidence of witnesses with poor recollections or an obvious interest in the proceedings: one witness was the applicant's son; the other witness acknowledged that he was a 'disgruntled' former employee of Mr Crisafio.

Because of the unsatisfactory and repeatedly disruptive manner in which Mr Smith had conducted himself during the hearing (including his selective, argumentative and unresponsive answers in cross­examination), and because Mr Smith had made unsubstantiated and extremely serious allegations against Mr Crisafio, the Tribunal left open the possibility of a costs order against Mr Smith to partially compensate Mr Crisafio for the significant legal costs that he had to bear in order to clear his name.

Boldra v Metropolitan (Perth) Passenger Transport Trust (1992) EOC 92­445

Clayton and Australia Post [1998] VADT 23

Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317

Cook v Oberon City Council [2010] FMCA 624; (2010) 62 AILR 101-233

Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16

Gounder v Allmand [2007] VCAT 1898; (2007) EOC 93­480

Kovac and Australian Croatian Club Ltd [2014] ACAT 41

Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165

Lee v Commissioner of State Revenue [2007] WASAT 271; (2007) 58 SR (WA) 314

McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125

Minns v New South Wales [2002] FMCA 60

Monash University v Kapoor [1999] VSC 463 at [64] (aff'd

Mooney v Butlers Barristers and Solicitors [2012] WASAT 40; (2012) 79 SR (WA) 185

Ninan v Valuer General [2012] WASAT 248

Ninan v Valuer General [2012] WASAT 248 (S)

Purvis v New South Wales (Department of Education and Training) [2001] FCA 1199; (2001) 186 ALR 69

Sellen and TNT Australia Pty Ltd [2015] SAEOT 6

Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91

Slattery v Manningham City Council [2013] VCAT 1869

Smith v Buick Holdings Pty Ltd [2015] FWC 6900

Summerville and Department of Education and Training [2006] WASAT 368

Tate v Rafin [2000] FCA 1582; (2001) EOC 93­125

University of Ballarat v Bridges [1995] VICSC 90; [1995] 2 VR 418

Van Der Kooij v Fire and Emergency Services Authority of Western Australia [2009] WASAT 221; (2010) EOC 93-550

Walsh v Palace Nominees Pty Ltd [2015] FWC 6434

Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349

Winter and Commissioner of Police [2007] WASAT 55

Zangari v St John Ambulance Service [2010] WASAT 6; (2010) 70 SR (WA); (2010) EOC 93­565

1 Mr Nigel Smith (applicant) lodged a complaint with the Equal Opportunity Commission (EOC) on 29 January 2014 alleging that his former employer, Palace Nominees Pty Ltd (trading as Joe Crisafio KIA) (Mr Crisafio or respondent), unlawfully discriminated against him on the grounds of an impairment, namely his Post Traumatic Syndrome Disorder (PTSD).

2 Mr Smith's claim is one of direct discrimination and is brought under s 66A of the Equal Opportunity Act 1984 (WA) (EO Act), which provides as follows (emphasis added):

(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of ­

(b) a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or

(c) a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or

(d) a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,

the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.

3 The complaint lodged by Mr Smith also included a claim for unlawful victimisation. This additional claim was unconditionally withdrawn by Mr Smith in February 2014. This issue is considered further below in the light of the possible pursuit by Mr Smith of the claim afresh in November 2014.

4 For present purposes, Palace Nominees Pty Ltd is the alter ego of Mr Crisafio. That is, Mr Crisafio's company, and he, should, for all relevant purposes connected with the present claim, be regarded as one and the same. In any case, it is clear that Mr Crisafio, as the Dealer Principal, was in this claim the sole decision-maker in relation to Mr Smith's circumstances, and fate, as an employee. Mr Smith's case is brought upon this basis. It is therefore Mr Crisafio's state of knowledge of and his reactions to Mr Smith's impairment that are critical to judgments to be made about whether there was any relevant discriminatory treatment of Mr Smith.

5 The area specified in the claim is alleged 'discrimination at work' (s 66B of the EO Act). In particular, s 66B(2) makes it 'unlawful for an employer to discriminate against an employee on the ground of the employee's impairment':

(a) in the terms or conditions of employment that the employer affords the employee; or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment.

6 Mr Smith was employed by the respondent as a vehicle salesperson from 28 May until 13 November 2013, when he was summarily dismissed by Mr Crisafio for allegedly taking confidential trade data out of the office and manifesting an intention to abandon his workplace. Mr Smith's employment contract with Mr Crisafio expressly declared what would already be his obligation with respect to such data: that it was to be treated as confidential and was not to be used except for the benefit of Mr Crisafio's business. The respondent conceded that the data taken was not misused.

7 Mr Smith denies these allegations. He alleges, in effect, in the alternative that, because he suffered from PTSD, he was dismissed from his employment and he suffered other losses. In rather dramatic terms (a feature of this case), Mr Smith described his treatment at the hands of the respondent as deliberate 'torture' (statement to the EOC dated 28 January 2014).

8 As will be emphasised further below, it is not the task of the Tribunal in the abstract to adjudge overlapping industrial matters (such as dismissal) as if somehow the Tribunal were an 'employment tribunal'. The task of the Tribunal, exercising jurisdiction under the EO Act, is not to authoritatively decide whether the stated grounds for dismissal were, by themselves, legally and factually justified under relevant awards, contracts or statutes, although assertions by the parties about such matters will usually be relevant in determining the EO Act issues.

9 The task for the Tribunal is to discover whether there was any unlawful discrimination or relevantly unequal treatment of Mr Smith at work (including termination of his employment).

10 On 17 November 2014, a second complaint, one of victimisation ('for complaining about discrimination'), was lodged by the applicant with the EOC alleging that between September 2013 (that is, prior to and including his dismissal) and November 2014, Mr Crisafio had led:

... a campaign of calling everyone [Mr Crisafio] knows in the [motor vehicle sales] industry to stop me gaining [employment] or getting me sacked from employers[.] I have at least [two] witnesses and finally have proof of these acts[.]

11 No date range for victimisation was alleged in the original complaint of victimisation dated 29 January 2014. Nevertheless, there must be an implied overlap in the date range between the two complaints.

12 The only supporting evidence for the second complaint received by the EOC was a witness statement of Mr Smith's son (Mr Robert Smith) who also worked in the same industry. In a statement dated 28 November 2014 (that is, about a year after the original events and approximately 10 months after Mr Smith's original discrimination claim was lodged), Mr Robert Smith alleged, so far as is presently relevant, that on an unspecified date, presumably sometime in 2014, Mr Sevad Pasic (who was a new car sales manager at DVG Midland Mitsubishi) said to him words that led him to conclude that Mr Crisafio 'was ringing everyone up and telling his and my dad[']s [b]usiness'. This was in the context of earlier comments that indicated that Mr Pasic allegedly knew about the discrimination claim and that Mr Crisafio 'ha[d] been calling other dealers'. There was also a reference to Mr Crisafio allegedly contacting Mr Nigel Smith's previous employer, Automotive Holdings Group Limited (AHG).

13 The statement also refers to an alleged face-to-face meeting with Mr Pasic on 16 November 2013 concerning the return of Mr Smith's company car.

14 Now, with one additional sentence added, Mr Robert Smith's statement of November 2014 is exactly the same as his statement tendered in these proceedings (Exhibit 13). Curiously, however, Mr Robert Smith's other statement (Exhibit 13) is dated 26 August 2014. However, Mr Pasic deposed that the conversation between him and Mr Robert Smith took place after 26 August 2014. I will return to these matters below.

15 It seems that the rather late lodging of the EOC claim (29 January 2014) is explained by the fact that up until around the time of putting that claim together, Mr Smith was solely intent on taking Mr Crisafio to the Fair Work Commission for unlawful dismissal. The unavailability of legal aid for that course seems to explain part of the delay (T:112; 16.09.15); see also T:72; 16.09.15: 'I didn't want to take Joe Crisafio here [to the Tribunal]'.

(1) It is unlawful for a person (in this section referred to as the victimiser) to subject, or threaten to subject, another person (in this subsection referred to as the person victimised) to any detriment on the ground that the person victimised -

(a) has made, or proposes to make, a complaint under this Act; or

(b) has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act; or

(c) has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act; or

(d) has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act; or

(e) has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or

(f) has made an allegation that a person has done an act that is unlawful by reason of [s 66A, found in Pt IVA of the EO Act]

or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).

(2) Subsection (1)(f) does not apply if it is proved that the allegation was false and was not made in good faith.

17 In McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125 (McMahon), reference is made, at [91], to Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent) where Pritchard DCJ (as her Honour then was) said, at [67], that in order to demonstrate victimisation under s 67 of the EO Act, it must be established that:

1. the person victimised suffered, or was threatened with, a detriment;
2. the detriment alleged must be a disadvantage that is substantial and not trivial;
3. the victimiser subjected the person victimised with the detriment, or threatened to do so;
4. a dominant or substantial reason for the victimiser's conduct was that the person victimised has made or proposes to make a complaint under the EO Act, or has brought or proposes to bring, proceedings against the victimiser under the EO Act (or one of the other grounds for victimisation in s 67(1)). That is, it must be established that:
   • the complaint, or intended complaint, must be the dominant or substantial reason for doing the act of victimisation;
   • there must be an intention to cause detriment; and
   • there must be a causal link between the conduct of the victimiser and the detriment suffered. In the absence of facts capable of proving intention to cause the detriment, or facts capable of supporting such an inference, there will be no basis for a contention of victimisation.

18 On 29 December 2014, the EOC dismissed the victimisation complaint under s 89 of the EO Act as 'lacking in substance'. The grounds specified by the EOC as their reasons justifying dismissal of the complaint were as follows:

There has been no evidence submitted to substantiate [the complaint] even though your complaint stated that you '... finally have proof of these acts'. Your son's statement is hearsay and inherently unreliable. Your other witness is not prepared to submit a statement before February 2015. I am not prepared to keep your file open until then.

Nevertheless, on 31 December 2014, at Mr Smith's request (as he was entitled to do), the Commissioner referred the victimisation complaint to this Tribunal, pursuant to s 90 of the EO Act.

19 Earlier, by letter dated 24 February 2014 addressed to the EOC (and furnished to the Tribunal on 10 June 2014 with the EOC's referral report on the main complaint of discrimination), Mr Smith unconditionally withdrew his then complaint of victimisation lodged with the EOC on 29 January 2014 (see above). He confirmed that '[I] only [want to] continue with my complaint of impairment discrimination'. Mr Smith then concluded his letter by saying (emphasis added):

Based on this advice I understand that my complaint of victimisation will now be closed.

20 In his closing submissions on this second complaint of victimisation (that is, his complaint made on 17 November 2014), Mr Smith maintained that his second witness (Mr Paul Walsh) was at that time (that is, around November 2014) unable to give a witness statement to the EOC because Mr Walsh worked for Mr Crisafio and feared for his future employment if he spoke out in favour of Mr Smith.

21 Mr Smith was permitted in these proceedings to call both his son (Mr Robert Smith) and Mr Paul Walsh. Both witnesses alleged, in effect, that Mr Crisafio was, after Mr Smith's dismissal, contacting potential employers with a view to either warning or dissuading them from employing Mr Smith.

22 The evidence is dealt with in more detail below. However, for present purposes, we may note that Mr Crisafio has denied the allegations of victimisation, and Mr Pasic has denied the substance of Mr Robert Smith's recollections.

23 There is no material before me as to why the January 2014 victimisation allegations were withdrawn or as to precisely how (or why) they were apparently revived, given that they appear to cover, at least in part, the same period of time.

24 Section 83A of the EO Act provides, so far as is relevant, as follows:

(1) A complainant may at any time between the lodging of the relevant complaint and the final disposal of that complaint under this Division withdraw that complaint by notice in writing served on the Commissioner.

(2) ...

(3) ...

(4) If a complaint ­

(c) the person seeking to pursue the complaint afresh satisfies the Commissioner that there is good cause for that pursuit to take place; and

(d) that pursuit takes place within a period of 6 months from the withdrawal or lapse of the complaint.

(5) Notwithstanding anything in this section, if the Commissioner is satisfied within the meaning of subsection (4)(c) in respect of a complaint, the person seeking to pursue the complaint afresh may do so without lodging another complaint ...

25 The learned authors of the Australian and NZ Equal Opportunity Commentary (CCH, at [ 87-585]) have summarised the effect of s 83A as follows:

Where a complaint is withdrawn or lapses, it cannot be reinstated unless the person seeking to do so satisfies the Commissioner that there is good cause for the reinstatement to take place. The person seeking to reinstate a complaint must do so within a period of six months from the withdrawal or lapse of the complaint. If a person is allowed to reinstate a complaint it will not be necessary to lodge a fresh complaint.

26 It appears that a period of six months had elapsed since the first complaint was withdrawn by the complainant (s 83A(4)(d) of the EO Act). It would appear that such a limitation period may not, at common law, be extended: cf Lee v Commissioner of State Revenue [2007] WASAT 271; (2007) 58 SR (WA) 314. This would seem to present an insurmountable hurdle for Mr Smith if the two complaints truly overlap.

27 There is, it appears, no material before me to show precisely how the EOC dealt with the apparent 'pur[suit] afresh' of the withdrawn complaint, except that a further, fresh claim of victimisation was subsequently accepted by the EOC and that it has been referred to the Tribunal. Presumably, 'good cause for that pursuit to take place' was demonstrated, but it seems slightly at odds with a subsequent decision taken only a few weeks later to dismiss the complaint as lacking in substance. It is true, however, that at that later point, Mr Smith's promised second witness (Mr Walsh) had failed to materialise. No doubt there are adequate explanations for all of these events but, if so, they were not placed before me.

28 The respondent did not take any point on these matters preferring, perhaps understandably, to concentrate, in an already complex case, on the substantive factual issues before the Tribunal.

29 In the circumstances (including not wishing to delay matters any further), but not without some hesitation on my part, I have decided to proceed upon the basis that there is a valid claim for victimisation before the Tribunal.

30 Mr Smith represented himself in the hearing. The respondent was represented by Mr Tim Kennedy. I acknowledge Mr Kennedy's professionalism and cooperation in what was a far from easy hearing in which to participate. I must also acknowledge his patient assistance in marshalling for the Tribunal and the parties a vast array of paper material said to be relevant to the applicant's case.

31 I should also, unfortunately, record that one of Mr Smith's text messages to his psychologist, Dr Dale (which Mr Smith voluntarily disclosed amongst scores of text messages), appeared to suggest that Mr Smith wished to harm Mr Kennedy when Mr Kennedy had foreshadowed, perfectly appropriately in the circumstances, following a directions hearing (probably on 18 August 2015), a possible costs application arising out of, in effect, Mr Smith's apparent failure to comply with earlier procedural orders of the Tribunal.

32 Mr Smith did not deny sending the text message or its import, saying in his written email response, dated 4 September 2015, that this was 'another attempt by [Mr Crisafio] and you to blow things out of proportion'. Inappropriately in his response, Mr Smith wondered 'if you [that is, Mr Kennedy] were the same at school, crying to the teacher and therefore got bullied a lot [note: numerous corrections to the spelling and grammar have been made to this extract]'. The text message to Dr Dale reads (emphasis added; again, numerous corrections to spelling and grammar have been made):

Mr Kennedy is leaving the Tribunal's hearing room but he is always threatening me with legal costs; lying and smiling while he does it, I am trying but for how long I can do this, as I want to hurt him for what he has done and the threats to my family which he denies.

33 A similar threat was made concerning Mr Crisafio in November 2013 when Mr Smith sent his treating psychologist, Dr Dale, a text message that included the following (emphasis added):

'[i] am going down to confront the boss [Mr Crisafio], but I'm afraid of what I will do. I want to kill him for what he has done [to me and my family] I found myself following him on Sunday, so now I know where he lives ...

34 This text message was, apparently, sent on the morning of a meeting with Mr Crisafio (probably 18 or 25 November 2013). Mr Smith said that he had been misleading his psychologist: that he had not been following Mr Crisafio, and that he did not know where he lived. He did not act on such thoughts. The text message was sent because he was upset and 'angry': see below for Dr Dale's views on this text message; see also T:99­100; 16.09.15. It appears that this text message was sent before his meeting with Mr Crisafio. Mr Smith said at first that he was '100% calm' at the meeting until he was allegedly threatened (T:91; 16.09.15). Later, he admitted that going into that meeting he '[w]as angry ... yes, I was angry' (T:105; 16.09.15).

35 Further difficulties in managing the hearing arose in part because an underlying theme of Mr Smith's narrative of events included suggestions that Mr Crisafio had more than a bad temper and on occasions indirectly threatened Mr Smith (and his witnesses) with violence in connection with events immediately after his dismissal and the bringing of this action. Needless to say, Mr Crisafio has repeatedly denied such allegations. I will make some observations on the possible consequences of making such serious allegations, unsupported by any evidence of substance, later in these reasons.

36 On the first day of the hearing, Mr Smith arrived very late, bearing what appeared to be minor facial injuries, wearing sunglasses, and with an apparent eye injury. He alleged that on Monday of the previous week some property had been damaged at his residence; then on the Tuesday there was an attempt to poison his dogs; and that on the Wednesday he 'was attacked, assaulted and put into hospital'. Mr Smith claimed that there were injuries to his neck, eye socket and nose. These matters had been reported to the Police. In the Tribunal, Mr Smith identified the incidents as linked to Mr Crisafio.

37 On the day before the hearing commenced (a Sunday), via email, Mr Smith had notified the Tribunal of some of these events. He had not notified the respondent's solicitors. Mr Smith also claimed that none of his proposed witnesses would attend the hearing 'because there were threats made against them'. In the event, all of his witnesses who were available attended for cross­examination. Mr Smith's wife, Mrs Jill Smith, could not attend and a short corroborating witness statement was received from her.

38 The hearing was 'rearranged' to allow Mr Smith to attend (as he had foreshadowed) at the Magistrates Court to obtain an ex parte violence restraining order (VRO) against Mr Crisafio. This was granted by a Magistrate on the following day. A standard term or condition of the VRO permitted both parties to attend these proceedings in each other's presence. However, the Tribunal arranged additional, visible security for the hearing.

39 Notwithstanding these events and various associated disruptions and difficulties, such as Mr Smith commencing, during the hearing, to improperly film on his mobile device Mr Crisafio's associates sitting in the public gallery (T:21; 14.09.15), the hearing proceeded in a more or less orderly way.

40 I should record, however, that in this febrile atmosphere, towards the end of his own cross­examination, Mr Smith accused Mr Crisafio, in passing, of being a 'coward', which elicited a brief verbal response from Mr Crisafio, mischaracterised by Mr Smith as a 'threat'. After a short adjournment to restore some calm, the hearing proceeded normally (T:87­88; 16.09.15). In fairness, I should also record that Mr Smith went some way to redeeming himself by his calm and orderly cross­examination of Mr Crisafio on 17 September 2015.

41 It is common ground that, at all material times, Mr Smith suffered from PTSD, although the medical label 'post traumatic stress disorder' can be problematic, given its wide application to various symptoms and reactions to a serious event or incident. Moreover, as this case shows, the symptoms of the illness can be intermittent and unpredictable.

42 In Mr Smith's case, he suffered from PTSD following a serious incident (an industrial accident) that occurred in a previous car sales workplace. The accident occurred in August 2011 in, it appears, a vehicle showroom, when a vehicle he was inspecting under the hood (or bonnet) suddenly moved forward, injuring his left eye and throwing him backwards into another vehicle. He was off work for approximately three months and suffered debilitating physical and mental injuries, including temporary blindness in one eye and injuries to his lower back.

43 Although the incident left Mr Smith with other physical injuries, I understand that his case in this Tribunal is solely confined to the psychological symptoms or effect that PTSD manifests in relation to stress arising in the workplace. This is despite the recitation in Mr Smith's undated witness statement, tendered in the hearing, of a lengthy list of physical ailments associated with the 2011 accident. I take it that the reference to these physical injuries is to demonstrate the scale of the accident and the underlying or associated physical injuries. In any case, those physical injuries seem to form the backdrop to at least one or two incidents that allegedly caused Mr Smith distress when Mr Crisafio attempted to introduce him to two well­known naturopaths (father and son) who were visiting the dealership on separate occasions

44 I will set out below in much greater detail the medical evidence in relation to PTSD that was supplied to the Tribunal. However, it may be remarked here that it is clear that the very severe symptoms that Mr Smith was reporting to clinicians concerning his PTSD in May 2013 (that is, a date very close to when he commenced work with Mr Crisafio) were never, even on Mr Smith's case, conveyed to Mr Crisafio or to Mr Smith's line manager, Mr Stephen Molloy.

45 As will be seen below, Mr Molloy, alone, expressly admits to knowledge of Mr Smith's PTSD, but only from the date of a written 'first and final warning' given to him by Mr Molloy on Mr Crisafio's behalf (on 25 October 2013) and then only, it seems, in relation to the existence of Mr Smith's PTSD in general terms. Mr Crisafio's generalised knowledge of Mr Smith's PTSD, at some point around then, is to be implied from what his solicitors said in their response dated 26 March 2014. This was confirmed in the hearing in this Tribunal. I will return to these matters as appropriate, below.

46 The particulars of the complaint, as they appeared in Mr Smith's original written narrative (dated 28 January 2014 and furnished by him to the EOC), were, in summary (with some dates and other minor details inserted to give context), that:

• Mr Smith was an experienced and successful salesperson, so much so that he was promoted by the respondent (on 7 August 2013, just over two months from when Mr Smith started with Mr Crisafio);
• one of Mr Crisafio's senior managers (Mr Molloy) 'knew' about Mr Smith's impairment (a condition that was being adequately managed by Mr Smith, including being managed by him whilst at work);
• Mr Smith could not obtain a copy of his contract of employment from his employer but that, in any case, he had not been paid what had been agreed between them;
• Mr Smith's relations with Mr Crisafio deteriorated, in part, because of conversations about the state of Mr Smith's physical health by Mr Crisafio with third parties, including naturopaths (which distressed Mr Smith);
• Mr Smith was given a 'first and final warning', on 25 October 2013, following an argument with Mr Crisafio;
• Mr Smith's relationship with his employer deteriorated and he was advised, inappropriately, to 'cheer up or f­­k off';
• sales contacts or 'leads' to various potential customers were withheld from Mr Smith and given to other (and, in some cases, more junior) staff;
• Mr Smith's salary was reduced from the increased salary and benefits that he had been promised after his October promotion;
• delays in the finalisation of some vehicle sales (that is, towards the end of Mr Smith's employment) had the potential to significantly impact on his remuneration for the month (and these delays were possibly orchestrated deliberately by his employer);
• Mr Smith was suffering from mounting anxiety;
• on the day before he was summarily dismissed (that is, on 12 November 2013), Mr Smith was experiencing severe stress at work; he took additional dosages of his medication and left urgently, claiming that he was visiting his general practitioner;
• Mr Smith downloaded from the respondent's data base several contacts (16 'leads' of potential clients) to follow up from home;
• while Mr Smith was waiting for medical treatment, the dealership began chasing him via numerous text messages;
• in particular, the dealership wanted its company vehicle (received as part of Mr Smith's remuneration package) returned to it as soon as possible;
• Mr Smith was then advised, by text message, that he had been dismissed from work and that he would not be paid out his final emoluments until his company vehicle was returned to the dealership;
• Mr Smith's purported dismissal was unjustified and was just 'two weeks short' of the six months period necessary to invoke statutory unfair dismissal remedies;
• Mr Smith was initially short changed in his termination payments; and
• Mr Smith was later subjected to intimidation and threats of violence and malicious rumours were spread about him.

This chronicle of events is, apart from one important (but implied) matter concerning the precise state of Mr Crisafio's knowledge of Mr Smith's impairment, essentially consistent with Mr Smith's more detailed case put at trial. This included a more thorough and professionally prepared statement made by Mr Smith, dated 25 February 2014, and, it seems, prepared by the EOC, and a second, undated, response by Mr Smith (probably given in early April 2014) furnished in reply to the respondent's solicitors' formal denial of discrimination and their alternative explanation of events, dated 26 March 2014.

47 All of this would be more or less repeated in Mr Smith's undated witness statement filed in the Tribunal in September 2015 and his other evidence given at the hearing. This evidence is examined in considerable detail below.

48 As has already been indicated (and as will be seen below), the state of any respondent's knowledge of an impairment will be critical in determining whether the alleged discrimination in the work area occurred 'on the ground' of that impairment (s 66B of the EO Act). Here, at the earliest point in his claim, Mr Smith maintained that by reason of a (then) unspecified communication with his line manager (Mr Molloy), it was indicated that Mr Molloy would be 'alright' with the steps that would be needed to 'keep [his condition] under control', such as getting away (that is, by 'go[ing] for a walk') for a short time. Further, in this initial narrative of his complaint, Mr Smith alleged that Mr Molloy, at some (then) unspecified point or points, 'kept trying to make me go to Buddhist meditation' as a cure for his ailment.

49 Later, Mr Smith would allege that at the time of his job interview (which was conducted solely with Mr Molloy), he told Mr Molloy that he would need time off for medical appointments arising out the 2011 accident and he then allegedly discussed with him whether his PTSD would affect his ability to sell cars (and how much of that needed to be disclosed in his employment application form).

50 I should observe here, that such 'self-management' of Mr Smith's condition, if this is what it was (and regardless whether anybody in the dealership knew about the precise extent or nature of Mr Smith's PTSD), seems at odds with both the potentially severe symptoms and the management thereof indicated by the medical experts. As will be seen below, at around the time Mr Smith was commencing work with Mr Crisafio, his treating psychologist (Dr Dale) was recommending that Mr Smith 'be hospitalised or undergo intensive treatment' (T:139; 16.09.15). I will return to this issue further below.

51 Nevertheless, Mr Smith's, in effect, informal and self­management regime (supported by additional therapy with his clinicians, and perhaps also, to some extent, informally supported by Mr Molloy at work) appeared to succeed (at least for a time) because, as the narrative tells us, Mr Smith was promoted by reason of his success as a salesperson.

52 In reply to the applicant's narrative of 28 January 2014, the respondent, through his solicitors, said (on 26 March 2014):

Mr Smith was employed by Joe Crisafio KIA, as a general salesperson, on or around 30 May 2013 ...

Mr Smith was later prompted from salesperson to be the second in charge. As a result of his promotion, to reflect his increased responsibility, Mr Smith's retainer was increased from $750 to $1000 per week.

Mr [Molloy] suggested that Mr Smith try Buddhist Meditation. This suggestion was made privately and in genuine concern for Mr Smith.

Prior to [25] October 2013 [when the First and Final warning was given to Mr Smith], Mr Crisafio did introduce Mr Smith to two naturopaths that were customers and had previously treated Mr Crisafio's back pain. This introduction was made because Mr Smith had been complaining, openly and loudly, about having a sore back, but had refused to see a doctor citing as his reason 'I can handle pain. I am used to it from being in the Army'.

Mr Smith was given a written warning on [25] October 2013. That warning was given due to [his] poor performance as the [second in charge] and as Acting Sales Manager in Mr Molloy's absence.

On 26 October 2013, and only after receiving the written warning:

• Mr Smith met with Mr Molloy during which he disclosed to Mr Molloy his alleged PTSD;
• Mr Smith said to Mr Molloy that he no longer wanted to continue as [second in charge];
• Mr Smith asked whether his employment would continue despite him no longer being [second in charge]; and
• Mr Molloy confirmed that Mr Smith's employment would continue.

Upon stepping down as [second in charge], Mr Smith's retainer was reduced, from $1,000 to $750 [per week], to match that of an ordinary sales person.

Prior to 26 October 2013, neither Joe Crisafio KIA, Mr Crisafio [n]or Mr Molloy were aware that Mr Smith was suffering or was claiming to suffer from [PTSD].

At no time did Joe Crisafio KIA, its servants or agents or Mr Crisafio:

• introduce customers to Mr Smith for the purpose of belittling and/or embarrassing him about his alleged PTSD;
• frustrate or otherwise reduce Mr Smith's capacity to reach his sales targets at all, or as a result of his PTSD;
• treat Mr Smith any differently after he had disclosed his PTSD; and/or
• say to Mr Smith words to the effect of 'don't get yourself all stressed up or you will be off work with depression'.

After [25] October 2013, Mr Smith was required to continue to work as normal. Mr Smith was given his fair share of leads, when he needed them. In that regard, Mr Smith was treated in the same manner as other employees. As Mr Smith is quick to point out, he had no difficulty meeting his targets.

The allegation that Joe Crisafio KIA pushed the shipping dates back to purposely avoid paying commissions is denied and unsupported, by evidence.

On 12 November 2013, Mr Smith forwarded confidential information belonging to Joe Crisafio KIA to his personal email address. Shortly after, Mr Smith then collected his personal belongings, kept at his desk, and left the premises saying that he was going to see a Doctor.

On 13 November 2013, Mr Smith's employment was terminated. The basis for termination was:

• Mr Smith displayed an intention to use confidential information in breach of his employment contract by emailing the confidential information to himself; and/or
• Mr Smith displayed an intention to no longer be bound by his employment contract, by removing his personal belongings, and also in circumstances where he had engaged in the conduct referred to [immediately above].

Joe Crisafio KIA was concerned that Mr Smith was preparing to accept, or already had accepted, an offer from a rival dealership. The genuine concern was that Mr Smith, by forwarding the contact details for customers, intended to 'poach' existing customers of Joe Crisafio KIA.

Mr Smith belatedly faxed through a doctor[']s certificate on 14 November 2013, only after he had been terminated.

Mr Smith then refused to return a vehicle belonging to Joe Crisafio KIA unless and until he was paid the sum of $4,000.

Mr Smith's complaints appear to relate to the reduction of his retainer, his alleged 'exclusion' from sales leads and the fact that he was terminated. Those matters are all disputes which are more properly dealt with by Fair Work Australia.

It is not in dispute that Mr Smith was a sales person who performed well, as a salesperson.

However, the simple explanation was that Mr Smith was terminated because Joe Crisafio KIA had a genuine concern that he was stealing confidential information for a rival.

Jurisdiction of the Tribunal and relevant principles as to how discrimination is to be proved

53 In Laurent, Pritchard DCJ (as her Honour then was) summarised the essential elements of a successful claim under s 66A(1) of the EO Act. Her Honour noted, at [32] (emphasis added), that the applicant must show that:

(a) he suffered from an impairment;

(b) the [respondent] treated him less favourably than in the same circumstances or in circumstances that are not materially different, the [respondent] treats or would treat a person without such an impairment; and

(c) he was treated less favourably on the basis of that impairment ­ that is, there is a causal connection between the ground of discrimination alleged and the decision or act complained about;

• it is not necessary for the impairment to be the sole or a dominant or substantial ground for the relevant conduct - it is enough if it is one of the grounds for the conduct;
• proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of the impairment.

See Williams and Commissioner of Police [2005] WASAT 349 at [35] ­ [38] and the cases cited therein, and see also s 5 of the EO Act.

54 As I noted in McMahon, at [22], similar observations to those set out above appear in Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16 (Edoo) at [78] ­ [80] (Pritchard DCJ and Member McNab). Thus, here, Mr Smith must:

... prove on the balance of probabilities that the respondent treated him 'less favourably' than the respondent would have treated another person without an impairment in the same or not materially different circumstances ... The expression 'less favourably' [appearing in the EO Act] bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case ...

To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated ...

It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical ... Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.

(Edoo at [160] ­ [162], internal citations omitted)

55 Critically, as noted in McMahon, at [24], and as was emphasised here by the respondent's counsel, 'establishing the existence of [the] causal link is frequently the most crucial element in any case': Zangari v St John Ambulance Service [2010] WASAT 6; (2010) 70 SR (WA); (2010) EOC 93­565 (Zangari), citing C Ronalds, Discrimination Law and Practice (3rd ed, 2008) at 36; now see, C Ronalds and E Raper, Discrimination Law and Practice (4th ed, 2012) at 35 (emphasis added). That is, it must be proved that 'there is a causal connection between the ground of discrimination alleged and the decision or act complained about' (Laurent, at [32]). However:

It is enough that it be shown that the doing of the act was 'by reason' or 'on the ground' of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real 'reason' or 'ground'. It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the [EO Act] Act.

Zangari, at [33], citing Kirby J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, at 63 (dissenting as to the result, but not on this point).

56 In McMahon, at [26], I noted that Ormiston J (as his Honour then was) suggested a formulation whereby the expression 'on the ground of', in this context, 'connotes a basis which actuates or moves a person to decide a matter or to act in a particular way': University of Ballarat v Bridges [1995] VICSC 90; [1995] 2 VR 418 cited in Clayton and Australia Post [1998] VADT 23.

57 In McMahon, at [27], I also noted that the learned authors of the Australian and NZ Equal Opportunity Commentary (CCH, at [ 5­250]) had suggested that (emphasis added):

In order for an unlawful act of discrimination to have occurred, the ground or characteristic in question, that is, the complainant's sex, race, etc, must have a causal effect on the decision to commit the discriminatory act. An aggrieved person has to be able to show a relationship of cause and effect between the relevant characteristic and the action of the discriminator ...

As a result of the decision of the High Court in Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; [2003] HCA 62; (2003) 217 CLR 92] (2004) EOC 93-305, which considered the expression 'because of' in the Disability Discrimination Act 1992 [Cth], it seems that the appropriate approach to expressions such as 'by reason of', 'on the ground of' and 'because of' is to question the 'true basis' or 'real reason' for the act of the alleged discriminator.

58 I consider more thoroughly below the position where the respondent establishes that it had no knowledge (or, relevantly, insufficient knowledge) of the impairment: see the discussion of Tate v Rafin [2000] FCA 1582; (2001) EOC 93­125 (Rafin) below.

59 Allegations of discrimination under the EO Act are to be generally characterised as of a 'serious nature', carrying serious consequences if proved: Edoo at [53]; but cf the commentators discussed in McMahon, at [29]. So, as Edoo suggests, at [53] (internal citations omitted):

[A]lthough the civil standard of proof on the balance of probabilities applies, [the Tribunal] must feel an 'actual persuasion' that the facts alleged ... actually occurred and that [the Tribunal is] reasonably satisfied that the allegations of discrimination have been proved, before [the Tribunal] may make such a finding [of discrimination].

60 In McMahon, at [31], I went on to observe:

[G]iven the 'serious' nature of the allegations made, facts must be proved to an appropriate standard ... and inferences may only be drawn from a process of 'logical deduction' from 'a foundation of objective facts'. See, for example, the discussion in Zangari, at [46] ­ [55], and Soelberg (formerly van Droffelaar) and Commissioner of Police [2008] WASAT 305 (Soelberg) at [87] ­ [92]. The onus of proof remains upon the applicant: Edoo at [53]. In Soelberg, it was observed, at [91], that:

'A respondent is in a special position to explain the reasons behind impugned discriminatory conduct. Where an inference is drawn from a failure of a respondent to explain the reasons, this does not reverse the onus of proof.'

See also the authorities discussed in McMahon, at [33] and [34], on the use of circumstantial evidence to prove matters; that is, Monash University v Kapoor [1999] VSC 463 at [64] (aff'd: [2001] VSCA 247; (2001) 4 VR 483; (2002) EOC 93-188; Kovac and Australian Croatian Club Ltd [2014] ACAT 41 at [93]; and Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 at [40] and [41].

61 McMahon also usefully sets out the general limitations on the Tribunal's jurisdiction: see [82] and [83]. I have already mentioned that the Tribunal, when exercising jurisdiction under the EO Act, is not somehow to be equated as if it were an industrial tribunal. Nor is it a tribunal of general morals. In McMahon, I observed, at [82]:

[T]he Tribunal does not sit to pass judgment on the morality of [the respondent's] or its agents' conduct in its relationships with its tenants and employees. And, even if findings adverse to [the respondent] were made on such matters, again, they are not in themselves relevant evidence, let alone proof, of discrimination under the EO Act.

62 Thus, the Equal Opportunity Tribunal of South Australia could find, as it did recently in Sellen and TNT Australia Pty Ltd [2015] SAEOT 6, at [19], that certain conduct of a manager in relation to an employee with autism 'was unfair and irrational' but that did 'not make it unlawful' under the local equivalent of the EO Act. As was similarly noted by the Victorian Tribunal in Gounder v Allmand [2007] VCAT 1898; (2007) EOC 93-480, at [94], legislation such as the EO Act is not concerned with:

... the behaviour of an employer that is industrially unwise, contrary to sound management principles, capricious or unjust. The complainant must establish discrimination [under the relevant EO Act].

63 Therefore, Chaney J could say, in this same context, that where the complaint 'is that [the complainant] was wrongfully dismissed [it] is not the same as having been subjected to unlawful discrimination': Mooney v Butlers Barristers and Solicitors [2012] WASAT 40; (2012) 79 SR (WA) 185, at [32].

64 I turn to consider the medical evidence that was placed before the Tribunal concerning Mr Smith's PTSD.

65 Dr Frederick Ng is a psychiatrist. He is also a '[W]orkcover (WA) approved medical specialist'. On 31 May 2013, a date very close to when Mr Smith commenced work with Mr Crisafio, Dr Ng assessed Mr Smith for workers compensation purposes. He assessed Mr Smith to be suffering from an 'anxiety disorder' with 'associated depressive symptoms' arising out of the August 2011 incident at work. Dr Ng said that '[s]ome of [Mr Smith's] reported psychiatric symptoms resembled post traumatic stress disorder'. His alternative diagnosis supported a finding of 'post traumatic stress disorder ... with associated depressive symptoms'.

66 During his consultation with Dr Ng, Mr Smith allegedly said that his then employer (not Mr Crisafio, presumably Automotive Holdings Group Limited (AHG)) was very difficult to deal with following the incident and 'allegedly threatened to destroy his reputation' (31 May 2013 report, page 12).

67 I pause to observe that Mr Smith's allegations seem to reflect recurrent themes in some of his relationships with his former employers (at least in the vehicle sales industry). Besides his allegations in this case, in 2015 in Smith v Buick Holdings Pty Ltd [2015] FWC 6900 (Buick Holdings) (discussed at length below), Commissioner Riordan in the Fair Work Commission noted that Mr Smith had alleged that his 'dismissal was part of a conspiracy to dismiss him by senior management [of Midland City Nissan], following an alleged assault perpetrated upon him by a senior employee'. Despite Mr Smith's PTSD (which still afflicts him), Mr Smith appears to have worked continuously (and successfully) in sales with Midland City Nissan from June 2014 until his dismissal by them for misconduct on 25 March 2015.

68 Amongst other things, Dr Ng recommended psychotherapy accompanied by a maximum of 15 to 20 hours' work per week. However, activities under the bonnet of a motor vehicle would 'cause [Mr Smith] significant anxiety'. Notwithstanding such concerns, Mr Smith chose (presumably because he was very good at it, and probably because he needed the income ­ see below) to, once again, re­enter vehicle sales full time.

69 Such an occupation might reasonably be regarded as carrying some risk, given the concerns of Dr Ng. As Mr Smith's circumstances in 2013 suggest, with the benefit of hindsight, any full-time work with the potential for a PTSD trigger event might have been risky for his mental health. In any case, as appears below, we now know that immediately prior to his commencement with Mr Crisafio, Mr Smith failed to complete the probationary periods of some four jobs because of 'panic attacks and flashbacks in the workplace'.

70 A subsequent examination by Dr Ng on 21 June 2013 (that is, approximately three weeks after Mr Smith commenced work with Mr Crisafio) confirmed the substance of the May 2013 diagnosis, with Dr Ng noting that:

[Mr Smith] presented as sincere and consistent in presenting his history and predicament to me[.]

71 Importantly, Dr Ng also recorded the following (emphasis added):

[Mr Smith] told me that he continued working at a Kia car dealer on a full time basis which he commenced some weeks ago. He said that he was trying to cope with his ongoing psychiatric symptoms in spite of the work. He said that talking to customers was a varying struggle. At times he had significant difficulties talking to them due to anxiety and he needed to 'get out of there'.

When anxious he said that he would feel 'closed in', he experienced difficulties breathing, he would feel hot and feel highly anxious. He was unaware of what the triggers there could be to [sic], regarding the increased levels of anxiety. He said that he could not cope with going under the bonnet of a vehicle and hence avoided doing so.

He said that he had to tell clients that he did not know where the compliance plates of vehicles were in order to avoid going under bonnets of vehicles. If he saw colleagues going under the bonnet of a vehicle he would get anxious and would need to get away from there. He said that at times he found it difficult to cope with his work and had to hide away in the bathroom or toilet or 'jump into' his car and drive away.

He told me that he was currently seeing the psychologist [Dr] Anne Dale on an ongoing basis and saw the psychologist once a week.

72 Dr Ng's report of 21 June 2013 also reported that Mr Smith was 'easily angered and easily frustrated' and that he 'found it difficult to talk to customers'. Talking to customers, Mr Smith indicated, continued to be 'a varying struggle'. Mr Smith also had 'transient suicidal ideation but [with] no planning or attempts'.

73 As at 24 June 2013, the applicant's treating clinical psychologist (Dr A Dale), after four sessions with Mr Smith, diagnosed his reporting and presentation as 'indicative of PTSD, with severe concurrent depressive symptoms and Panic Attacks'. The third such session with Dr Dale was the day before Mr Smith commenced working for Mr Crisafio (and the day of his job interview).

74 Dr Dale also noted that at Mr Smith's initial psychotherapy treatment on 23 May 2013 (a week before Mr Smith commenced work with Mr Crisafio), Mr Smith had presented with 'severe' symptoms. I have already referred above to Dr Dale's recommendation of immediate hospitalisation of Mr Smith. Dr Dale reported the following:

My initial assessment on [23] May, 2013, indicated that in addition to his depressive features, Mr Smith was suffering from PTSD with extreme terror of going blind, or of something terrible happening to him in the workplace. Mr Smith's PTSD and depression and anxiety have prevented him from remaining in the workplace for extended periods of time, and he suffers panic attacks which are so debilitating and frightening, that he has to get away from his workplace. He cannot sleep, is unable to concentrate, has poor memory, and is unable to face people or to cope with terrifying nightmares and flashbacks ...

He presented with vegetative (physical) cognitive (mental) and affective (emotional) features of severe clinical depression. In addition, at that stage there were observable and self-reported symptoms of a PTSD picture with 'fear of dying' and fear of blindness, terrifying nightmares, flashbacks, night-sweats, fear of approaching work, panic attacks in the work place and general avoidance of any aspects of his accident. Mr Smith also presented with extreme anxiety and some panic whenever he spoke of his dire financial situation, and his terror that he would never be well enough to return to work. He felt that the insurance company had let him down, never returning calls, withdrawing services, not paying bills, and generally being unavailable. He could not pay his medical bills and has been assisted by good friends so that his doctors will continue seeing him[.]

75 Her pessimistic conclusions and prognosis were as follows (emphasis added):

In my opinion Mr Smith is suffering severe symptoms of PTSD with extremely high levels of depression and anxiety. It appears that the trauma in the car accident [at work] has been so severe, that the absence of adequate treatment at the time of the accident, as well as the poor management protocol in his treatment, both physical and psychological, [means that] Mr Smith is now in an entrenched and debilitating depression, and suffers intense anxiety, and presents with symptoms of a severe PTSD picture, as well as chronic physical pain.

This has resulted in Mr Smith being in a constant state of despair, and suicidal ideation, but because the financial responsibility of his family weigh heavily on him, he has returned to work even though he should have been booked off and given adequate treatment. Unable to stay in any workplace, but not understanding his panic and fear of 'workplaces' he has left or been asked to leave because he cannot cope. Mr Smith's symptoms have been immobilizing and debilitating, and have contributed to both his inability to remain in any job, his loss of earnings, and his loss of promotional opportunities, his loss of any potential pay increases over two years, as well as deep and enduring psychological and physical pain.

It is of concern that unless adequately addressed through counselling today, and for a period of approximately two years of weekly sessions, (although this is difficult to precisely estimate), reoccurrences of depressive and anxiety symptoms will be both consistent responses to work settings, life crises, and/or Mr Smith will struggle with intermittent depression and anxiety reactive to everyday stressors. The likelihood of regression can be projected from Mr Smith's ongoing and severe symptoms over the last two years, and his inability to correct the balance himself, so traumatized was he.

76 Mr Smith's workers compensation lawyers (Messrs Stephen Browne) fairly summarised Dr Ng's opinion (as at mid­June 2013) that Mr Smith would 'require ongoing treatment and that [his] condition [would] improve with the passage of time over the next 12 to 18 months'.

77 Apart from what is recorded for workers compensation purposes, the Tribunal was not provided with any precise information as to Mr Smith's medication whilst working for Mr Crisafio. There are references in Mr Smith's evidence to him increasing the dosage of his prescribed drugs at around the time of his dismissal. There is a text message in early October 2013 that mentions him taking Pristiq (desvenlafaxine) which is an antidepressant. There is no evidence that Mr Smith's employer knew anything about the drugs that Mr Smith was taking either as to their dosages, purposes or possible side­effects (if any).

78 Overall, there is sufficient material to find that Mr Smith had, at all material times in relation to his EO Act claim but with varying symptoms, an impairment within the meaning of the EO Act: see s 4(1) of the EO Act defining 'impairment' as 'any defect or disturbance in the normal structure or functioning of a person's brain' or 'any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour'. It is clear that '[p]sychological disabilities may constitute a disability' or, here, an 'impairment': see Minns v New South Wales [2002] FMCA 60 at [190], citing Rafin at [64]; Winter and Commissioner of Police [2007] WASAT 55 (where PTSD was accepted as an impairment) and Slattery v Manningham City Council (Human Rights) [2013] VCAT 1869 (where PTSD was accepted as a disability).

79 For convenience of reference, we may say that Mr Smith suffered at all material times with PTSD. As I have indicated above, this is not contested by the respondent.

80 Thus, Mr Smith was, around the time that he commenced work with Mr Crisafio, according to the experts, liable (and indeed suffered at work from), inter alia, panic attacks, suicidal ideation and symptoms of depression and anxiety, possibly even symptoms of severe depression. Nearness to an open vehicle bonnet (difficult to escape from while working fulltime in a vehicle showroom) might be, and was, on Mr Smith's own medical evidence, especially problematic. Even talking to customers could induce a panic attack. I have already noted that Mr Smith had failed in four previous jobs.

81 In the discourse of equal opportunity, Mr Smith (on this evidence) might have been thought of as incapable of performing the 'inherent requirements' of his job. Cf the exception provided to employers in s 66Q(1)(a) of the EO Act: '... would be unable to carry out work reasonably required to be performed in the course of the employment': see, for example, Boldra v Metropolitan (Perth) Passenger Transport Trust (1992) EOC 92­445; Van Der Kooij v Fire and Emergency Services Authority of Western Australia [2009] WASAT 221; (2010) EOC 93-550.

82 However, this is not a matter that need be explored further (at least directly) in this case.

83 On the critical question, then, of how much, if any, PTSD might cause disruption at work in a vehicle showroom, given what the medical experts were predicting, Mr Smith's initial response to this issue was as follows:

KENNEDY, MR: ... By being around motor vehicles [that] would cause symptoms to come about, wouldn't they?

SMITH, MR: No.

KENNEDY, MR: You would get anxious. You would feel - so you wouldn't feel anxious - - -

SMITH, MR: Not all the time. No.

KENNEDY, MR: What if someone popped [open] the bonnet of a car?

SMITH, MR: It depends. I'm a mechanic by trade. I could walk into a ­ for instance, I could walk into a workshop and have a panic attack or I could help somebody fix a car and it wouldn't bother me. It all depends on what happens, when and where. It's not a disease like a cold where you've got a cold and you sneeze, and sneeze, and sneeze, and sneeze, sneeze. Post-traumatic stress can be triggered by many, many, many things.

(T:84; 14.09.15)

84 The following day, after further evidence on this point, these exchanges occurred in the Tribunal:

[THE TRIBUNAL]: Mr Smith, I'm having trouble following your answers in the last couple of minutes. You said you had no PTSD incidents from May to September and you also said [that] you've had no trouble popping the bonnet [open] and you said it was unnecessary [to open the bonnet]. You've just said there that you could or it had triggered an incident.

SMITH, MR: All right then. Well, if you want to answer me ­ answer it truthfully then, I do not know. I cannot say.

...

SMITH, MR: I was just going on a generic day to day. But if you're asking me did I ever have any issues, as an answer, I don't know.

...

KENNEDY, MR: So you don't remember any specific incident?

SMITH, MR: Don't remember any. It's two years ago, don't remember.

(T:21; 15.09.15)

85 Eventually, after some prevarication, Mr Smith would acknowledge that he had sent a text message to his clinical psychologist (Dr Dale) on the afternoon of 30 July 2013 when he had had a PTSD 'incident' at work caused by the opening of a vehicle bonnet. The text message read:

Sorry to contact you like this but [I] have had a bad turn today and found myself in the bathroom at work[.] A customer insisted on me showing him the inside of the bonnet[.] I tried to get out of it and get someone else but to no avail[.] I tried the breathing [exercise but] it had no effect[.]

86 And, in a later text message to Dr Dale, sometime after his dismissal, Mr Smith would go further and allege that Mr Crisafio or his staff 'insisted on having the bonnets open outside my office when they knew my fear'.

87 It is convenient to record here that Mr Smith sent other text messages to Dr Dale as follows (emphasis added):

1. On 25 September 2103: '... [having] really bad days and nights where it came out as an anger outburst' leading to Mr Smith leaving work temporarily. This text message is in parts incoherent but appears to possibly suggest that if he tells Mr Crisafio about the extent of his symptoms (or he finds out) then he will be dismissed ('... [I] ... want no need to tell him [Mr Crisafio] what [I] feel but [I] [know] this will probably have the result of termination').
2. 26 September 2013: 'sorry for the ... possible [incoherent] rants but [I] am so angry at getting all the blame ...'.

88 However, as we shall see, the main trigger events for critical moments of stress at Mr Smith's workplace appear to have arisen not so much in connection with motor vehicles with open bonnets (although these incidents occurred) but by concerns about access to potential sales, his remuneration, his work responsibilities and the documentation of his contract. All such matters occurred in the context of uncertainty about whether Mr Smith's employment would continue. These matters caused Mr Smith stress.

89 These concerns appear to be consistent with the anxieties concerning financial insecurity recorded by Dr Dale. Connected with the above, Mr Smith also alleged bullying and being 'sent to Coventry' (that is, being excluded from workplace activities) but these were part of, as he saw it a campaign to have him leave by denying him, amongst other things, sales commission. Mixed into all of this were Mr Smith's concerns at Mr Crisafio allegedly mentioning to third parties Mr Smith's other physical problems, and his friction with Mr Crisafio over incidents with customers.

90 Dr Dale also provided a witness statement to the Tribunal in the form of a letter dated 17 August 2015. Besides confirming numerous text messages between her and Mr Smith (which were in the form of counselling and advice), Dr Dale's statement included the following (emphasis added):

[Mr Smith] started at Joe Crisafio and as I instructed him he told his then manager Steve Molloy of his accident at AHG and his injuries including the PTSD, at the interview. It was essential [Mr Smith] disclose the injuries so that he could be understood, assisted and supported. Since [Mr Smith] has left Joe Crisafio, he has been completely distrusting of employers and colleagues.

The texts I received regarding [Mr Smith's] employment started when he was offered a job by Steve [Molloy] at Joe Crisafio's business and he was a little cautious as he had a psychiatrist['s] appointment [possibly with Dr Ng] that first week of employment. However[,] this proved unfounded as Steve [Molloy] was very understanding and [Mr Smith] began to trust in him ...

On about 13 August 2013, [Mr Smith] reported unfair treatment from his employer and owner Joe Crisafio. [Mr Smith] said that Joe [Crisafio] was consistently telling his friends or acquaintances of [Mr Smith's] illness and PTSD and making fun of [Mr Smith's] adherence to prescribed treatment. [Mr Smith] was very upset and embarrassed about this and he reported that he had told Joe on numerous occasions that he did not want this communication, but Joe 'laughed it off'.

[Mr Smith] reported his growing anxiety and stress in relation to being excluded from the group after he had complained about his wages. He was concerned [that] he was being pushed out because Joe [Crisafio] and Steve [Molloy] were not giving him sales leads allocating them instead to Charlie [Cloake] and Mark [other employees]. When asked about the leads they told [Mr Smith] no leads had come through.

[Mr Smith] expressed numerous concerns, both telephonically, via text message, and in sessions about his anxiety and unhappiness as a result of his treatment whilst he worked at Joe Crisafio Kia. [Mr Smith] reported further desperation when [he was] unable to secure a job in the motor-trade and then discovering that [sic] Joe Crisafio. [Mr Smith] said that he discovered [that] Joe Crisafio had seemed to bring his influence to bear on other [Dealer Principals], so that they did not respond to applications or fired him unfairly. [Mr Smith] has really struggled to overcome his primary PTSD, as he feels traumatized consistently by experiences of rejection and termination since his termination of service with Joe Crisafio.

91 In general terms, Dr Dale's recollection (and text messages passing between them) confirm the broad narrative of events relayed from Mr Smith's point of view. In cross­examination, Dr Dale made the following points:

1. At the time that Dr Dale commenced seeing Mr Smith, Mr Smith had failed to complete the probationary periods in some four jobs because of 'panic attacks and flashbacks in the workplace'.
2. Mr Smith's self-reported symptoms included feelings of 'terror and anger', loss of memory and loss of confidence and restlessness and irritability.
3. Dr Dale noted that Mr Smith had 'refused hospitalisation and/or intensive treatment' as initial options.
4. Notwithstanding Mr Smith's condition, he 'was in a position to go back to work'.
5. Mr Smith's condition would not make him prone to exaggerate what he was experiencing subjectively whilst at work. Indeed, Mr Smith would from time to time check his 'frame of reference' (that is, whether he was seeing things objectively) with Dr Dale.
6. Popping open a vehicle bonnet would 'cause anxiety and a need to walk away from the car'.
7. That although Mr Smith wanted to work to provide for his family, '[he] felt that he was capable of working through the therapeutic process and containing and managing and learning to cope with his anxiety and panic so that he would be able to cope in the workplace'.
8. In this regard, Dr Dale's therapeutic process with Mr Smith 'was quite helpful' and on balance 'to support him and work with him to get back into the workplace seemed a much more positive, constructive therapeutic approach'.
9. Mr Smith had a 'coping style' that made him 'strong and self­reliant'.
10. Although there might have been some element of a disproportionate overreaction to well-intentioned gestures (such as the offer of naturopathic treatment, organised by Mr Crisafio), Mr Smith's reactions were understandable given his expressed wishes and his sensitivity to 'publicity and exposure' stemming from his 'distrust and anxiety' associated with his condition.

92 As has been mentioned, shortly after Mr Smith had been terminated from his employment, he sent Dr Dale a text message where he told Dr Dale 'that he had followed Mr Crisafio home and wanted to kill him'. Dr Dale said that she did not think for one moment that Mr Smith would act on this; rather, it was 'an expression of [his] extreme frustration and anger' and a symptom of his PTSD.

93 Dr Dale confirmed what might have been thought perhaps obvious when she answered the following question from the Tribunal:

[THE TRIBUNAL]: If the management of the company apart from Mr Molloy didn't know about post-traumatic stress disorder, could they view what was happening to Mr Smith as a deterioration of work performance that didn't appear to have any basis other than some reason to do with his losing capacity at work or disinterest at work?

[DR DALE]: Well, of course it could. But, then, you ask the question why did Mr Molloy, as a senior manager, not disclose that?

(T:156; 16.09.15)

94 On the critical issue of whether and, if so, when Mr Smith told Mr Molloy of his condition, Dr Dale recalled that (emphasis added):

... we had that [issue] under discussion for a great part of one of our sessions where I made it quite clear to him that it was quite important to notify Mr Steve [Molloy]. And, in fact, when I questioned Mr Smith the week afterwards, he did say that Mr [Molloy] was grateful to him for notifying him of the PTSD and expressed his understanding and empathy because he, himself, had had a nervous breakdown and understood depression. So it seemed very feasible to me that Mr Smith was telling the truth [when he said that he had told Mr Molloy].

(T:143; 16.09.15)

95 This position is slightly different from Dr Dale's witness statement where she said that she had 'instructed' him to tell his manager 'of his accident at AHG and his injuries including the PTSD, at the interview' (emphasis added). Her recollection suggests the possibility that the conversation with Mr Molloy was, in fact, after the interview, in that Mr Smith had already met Mr Molloy by the time of this discussion. Further, in any case, it seems that Dr Dale was meeting Mr Smith on the day of his interview (28 May 2013). In re-examination, Dr Dale recollected as follows:

... what Mr Smith told me was Mr Crisafio was on holiday, and he came - he said it in therapy that he was afraid to disclose ­ disclose his PTSD in case there was a backlash because he had lost jobs prior to this one. And I said it was absolutely imperative that he disclose it because, then, he would have assistance with his condition. And that must have been in May [2013].

(T:154­155; 16.09.15)

Again, but more clearly, Mr Smith appears to be reporting to Dr Dale events (here, Mr Crisafio's absence from the interview as he was overseas, which is an agreed fact) after the interview.

96 However, as I have indicated, the main issue is the state of Mr Crisafio's knowledge of Mr Smith's condition. Quite apart from the fact that the extremely serious symptoms (such as proposed hospitalisation, presumably because of Mr Smith's suicidal ideation and severe depression) were never relayed to anybody in the dealership, the lack of a full appreciation by Mr Crisafio of Mr Smith's condition is suggested by this text message from Dr Dale to Mr Smith on 26 October 2013 (the day after his written warning; emphasis added):

You need to open up to your boss ... I can [come and] talk to him if you want me to. But until people understand what you have been [through] they just think you are being oppositional. Keep your chin up.

97 For whatever reason, Mr Smith did not follow this advice. If Mr Smith had, events might have perhaps turned out differently, or for the better, or at least might have been better managed.

98 Mr Smith was born in 1967 and he came to Australia from the United Kingdom in 2007. As is mentioned above, it appears that Mr Smith held some four different jobs immediately before working for Mr Crisafio. The medical and other evidence suggests that he worked as a Police Officer in Australia and, it appears, in the United Kingdom. In Buick Holdings, mention is made of the fact that his then employer 'was aware that Mr Smith was considering renewing his police career in 2016'. Mr Smith had also worked as a Prison Officer, presumably in Western Australia, for three months after the August 2011 incident. He also had previously worked in the Armed Forces of the United Kingdom. In his evidence, Mr Smith said that he had also worked as a mechanic.

99 Mr Smith said that he had been in the car sales industry for 'over 15 years' ('20 years', according to his oral evidence) including five years in the industry in Australia. As I noted above, Mr Smith commenced work with the respondent as a new car sales representative on 29 May 2013 and worked there until his summary dismissal on 13 November 2013. He was to be initially paid, according to an unsigned copy of his first employment contract, a gross (base) retainer of $750 per week plus commission based upon the sale and delivery of motor vehicles. A monthly bonus would be payable if certain targets were met. A mutual 'trial period' of three months of employment was provided for in the contract.

100 Mr Smith was promoted by Mr Crisafio. Commencing on 7 August 2013, Mr Smith's retainer was increased to $1,000 per week plus commission and bonuses. He was given the title of 'Fleet Manager and Assistant New Car Manager'. The remuneration that flowed to Mr Smith after his promotion might have reached about $120,000 or more per annum, plus a fully maintained vehicle.

101 There was a short period in early October 2013 where Mr Smith acted in Mr Molloy's position. There was a dispute about whether Mr Smith was underpaid for that period.

102 On 25 October 2013, Mr Smith was given the following 'First and final warning' signed by Mr Molloy:

Dear Nigel,

I have some areas of concern I would like to discuss with you.

It is a challenging time in retail, however your personal demeanour and work ethic has dropped considerably over the last few weeks and this has become a concern.

Areas I feel we need to discuss and improve are as follows ­

• Lack of initiative with yard duties, showroom etc considering you are a [second-in-charge].
• Consistently finding problems in situations when a positive attitude is the best course for the dealership.
• Resistant in doing certain tasks; Fleet letters for schools, service drop offs etc.

Nigel I need you to work as a part of a team and to take some pride, initiative and ownership in what we do here. You are in a senior position yet you do not act as someone in a senior position.

I need you to 'step up' and lead by example. I believe you know what I am talking about and are more than capable having managed yourself. However if you feel you cannot then we I will need to consider your employment here.

Regards

Stephen Molloy

103 Shortly after this, according to both the respondent and Mr Molloy, Mr Smith agreed to relinquish his second­in­charge role. Shortly thereafter, his salary and conditions were returned to their starting levels. This reduction in salary led to friction between Mr Smith and Mr Crisafio.

104 Mr Smith's attempts to obtain further employment after his dismissal on 13 November 2013 (including the events that led eventually to Buick Holdings) are set out and discussed below.

105 As with much of this case, the cross­examination of Mr Smith, which took place over the first three days of the hearing (with other witnesses interposed), was a difficult affair. Often Mr Smith would have no recollection of events, but this appeared to be selective, sometimes depending upon his reaction to the relevance of the question put to him (as he perceived issues of relevance). Mr Kennedy drew attention to this disappointing response to a question that Mr Kennedy had put to Mr Smith:

But again, if you're going to catch me out, I can't remember.

(T:27; 16.09.2015)

A similar uncooperative answer ('I don't know then') is given at T:109; 14.09.15.

106 As these examples illustrate, Mr Smith did not try, in my view, to be as fully cooperative as he should have been with the process of cross­examination. He was sometimes unnecessarily argumentative with counsel, and sometimes wilfully unresponsive in his answers. Apart from the incidents recorded immediately above, see, for example, the Tribunal's reprimands to Mr Smith on 15 September 2015 (T:22, 89; 15.09.15) and 16 September 2015 (T:10, 37, 238, 257­8, 281; 16.09.15).

107 Mr Smith's overall attitude to the proceeding is examined in greater detail below where the impact of these matters upon the veracity and reliability of his evidence is considered.

108 In Mr Smith's witness statement filed for the hearing (presented really in the form of an undated draft witness statement, without paragraph or page numbers), Mr Smith said that he was interviewed for his job solely by Mr Molloy. He said that he told Mr Molloy 'about [the] accident' and that he would 'have to go to appointments' with his psychologist and psychiatrist. I am left with the impression that this discussion appeared to be in the context of the management of Mr Smith's 2011 workers compensation claim. According to Mr Smith, Mr Molloy did not have a problem with these requests made by Mr Smith.

109 The associated employment application form (signed by Mr Smith, and dated 28 May 2013, but 'approved' on 30 May 2013), which also appears to vary the written employment contract (in minor respects), declares, wrongly, that Mr Smith was in 'sound health'. The form records a 'negative' answer to a query concerning 'disability or previous injury likely to be aggravated by the type of work [that was being applied for] or for which you may have special needs ...'. A section of the form dealing with past claims for workers compensation is left blank but, curiously, there is a negative declaration by Mr Smith as to the acknowledgement of him ever having read this section of the form on past workers compensation claims. It seems highly unlikely, despite his denial under oath, that Mr Smith had not read this section, for he admitted discussing this part of the form with Mr Molloy.

110 There are, of course, dangers for an employee if relevant information is not disclosed on their job application form: see, for example, Cook v Oberon City Council [2010] FMCA 624; (2010) 62 AILR 101­233. Thus, generally speaking, it has been observed that:

Prospective employees have an obligation to be honest in their applications and interviews. Failure to fully disclose relevant information may be a factor warranting subsequent dismissal. However, where the information was not relevant to the job, or where the prospective employer did not ask for the particular information, a subsequent dismissal based on the failure to disclose the information may be regarded as unjustified.

Commentary: Australian Human Resources Management (CCH, at [ 70­545] 'Unfair dismissal').

111 Mr Smith explained away these matters in his witness statement, as follows (emphasis added):

I started [with Mr Crisafio] on or around [28 May 2013] and my contract was drafted up on or around [7 June 2013]. Many things were verbal which is a normal occurrence in the industry but I had full confidence in [Mr Molloy's] word. I filled in the employment pack while [Mr Molloy] stood by. I was filling in the document and [Mr Molloy] was saying be quick[; as] there are customers about [in the showroom] they come first. He said no one reads [the forms] anyway. I asked about my previous [sic] how far back does he want[.]

He replied leave [the] same with schooling, when I mentioned the PTSD he [asked] will it affect you selling me 20 cars[,] I said no but I will need time off etc[,] he said do me 20 sales a month and you can have whatever you want[,] just tell me when you need to go. I ticked no to permanent injury [on the form] and no to the section regarding the section 79 statement [regarding past] workers comp which Steve was aware of as he signed it off.

112 Mr Smith's recollection of events around the day of his dismissal on 13 November 2013 (as appears in his witness statement) is, in part, as follows:

I rang my manager [Mr Molloy, concerning the allegedly unfair allocation of leads to Mr Smith]. He did not reply so I called and called then texted. I asked why this was being done to me. He initially refused to answer but eventually said see [Mr Crisafio]. I then called him and called him again to get an answer. [Mr Molloy] slammed the phone down and said do not call again, I only do as I was told and I [Mr Smith] said is that why the lead[s] from [one staff member were] taken from me and given to Charlie [another staff member] by [Mr Crisafio]. He again didn't respond ...

I could feel the anger and depression take hold, I could not stop it, I was feeling so ill I tried to hold it, I contacted [Dr Dale, my treating psychologist,] my [general practitioner] and [my treating psychiatrist] Dr Skerritt [but] no one was available to talk to. My world was crashing around me I could see that I should not have trusted anyone as my first gut feeling had been not to tell anyone [about] my illness and just continue as normal then no one would be able to victimise me or bully me with this.

I [then] decided I would give them [Mr Crisafio] no reason to get rid of me. I knew [that] I was very ill and would be off [work] for a few days and this was a substantial attack. I went to [Mr Crisafio's] office to find his door closed with what looked like [other dealers from another franchise] inside[.]

I couldn't take being abused further so I went to my desk and sent the contacts that I was dealing with at that time to my personal computer independently [16] and left the other 500-1000 [leads] on the spreadsheet ... I considered just updating the contacts in my phone as I had already been to their businesses, [had] spoke[n] to them and had all their contact details in my phone as my job needed these details in case I was away from my desk or working away or even on a day off as I would work from home and the[n] come in to do the [q]uotes.

I knew with this attack that coming in [to work] was impossible so texts (which are not the best way of contacting businesses) or email would be preferred as I cannot speak to clients when I am ill and email [t]o keep in touch as I had done many times before[.]

113 There was a meeting with Mr Crisafio apparently on either 18 or 25 November 2013 to discuss the return of the dealership's car. Mr Smith's recollection of the meeting was as followed:

[Mr Crisafio] refused to discuss my employment [he] just wanted me out and his car back, he denied any money was owed, he denied changing my wage structure the last fortnight before dismissal without telling me from [a] $1000 retainer plus commission to $750 plus commission so he could pay a lower percentage of average wage for my leave etc pay.

He denied deliberately paying super at 1% less [than what is] the law and not paying on all [of] my wages. [He] also refused to accept that he had been rash in sacking me as I had done nothing wrong[,] I had not broken my contract as he had said, I was right about the leads and he had deliberately persecuted me and victimised me for months and treated me totally different throughout these times to other salesman.

He denied that he had given all the leads to the other [three] salesman [sic] and refused to open the computer to prove this saying you [cannot] prove that and he even denied standing next to my desk, speaking to Charlie [Mr Cloake, a junior staff member] and giving him new, used and [fleet] leads and me non[e], again saying I have no proof.

He eventually got really angry[,] his face was red and the veins stuck out from his neck and forehead. He smashed his fist down hard on the table top and as it echoed around the dealership I saw Charlie and Emma [another staff member] look up, I couldn't see [Ms Jo Williams, another staff member] as her office [was] obscured but both doors were open and side by side. [Mr Crisafio] ranted, [']You think you are so tough, well we will see won[']t we, you don't know what or who you are dealing with I will break you!['] There were many profanities in this also but too numerous to say.

I said ['] [A]re you threatening me again [J]oe as I do think I am tough and I do not like these threats['.] He leaned over and said again words to the effect [that] we will see and stormed out of the office again towards his own office [and] passed [a staff office and reception and] even the accountant and [that] person looked up. I asked why he was threatening me and I would expect better from a pty [sic, private] company he again shouted [']don't push me just return my car or else['] and [I] responded by saying 'pay me what [y]ou owe and all [will be] good['].

114 Thereafter, the remaining five pages or so of Mr Smith's witness statement mainly detail about 10 episodes of actual or attempted employment with different dealerships in the greater Perth area. It is not clear from the statement what time span these events cover but it appears to be over a period of nine months or so. Nearly all of the engagements that actually led to employment, apart from one, ended, it seems, in the early dismissal or perhaps with the forced resignation of Mr Smith.

115 Mr Smith told the Tribunal that when he worked for Shacks in Fremantle (a position for which he had been 'head hunted'), his employment lasted for three months before he 'fell on his sword' and voluntarily resigned as 'the [presumably, inevitable] phone call' had already been allegedly made to them by Mr Crisafio (T:114­119; 16.09.15).

116 Some (perhaps all) of these periods of employment ended, it appears, in some acrimony between Mr Smith and the relevant employer (but not, it seems, all of his managers). Mr Smith blames his departure from nearly all of these jobs on the behind the scenes influence of Mr Crisafio. The end of the apparently longest period of employment (nine months, from June 2014 to March 2015, with DVG) is recorded by Mr Smith, somewhat disjointedly, as follows:

I was again top sales man but [nine] months later [and] 36 hours after Ross Bennett [the Dealer Principal] was moved to Holden I was dismissed in the same manner as [by Mr Crisafio].

I was at first told they had a head on my vehicle that I was driving as I was off work after a work place accident the first day I was off. I arranged for them to pick it up and drop me [off] another car ...Which they didn't[,] they cancelled my fuel card and denied that they had done this. They then when I was returning to work through a return to work schedule never picked me up for [three] days and on the [third] day I received a dismissal letter by recorded mail???? [sic] The reasons given [were]:

1. [I] took too long to recover from accident with injuries photographed and sick notes supplied? [sic]
2. Theft of fuel from my fuel card[.]
3. [L]eaving the dealership to go to [the] doctor[']s without [permission][.]

Numbers 1 [and] 3 were later dropped as I took them to court [that is, the Fair Work Commission] for unfair dismissal ... They refused to get the [CCTV] from the [sic] allegations and provided no proof, of the said offence except statements from [Mr] Mike [Tomeo] who wasn't there, [Human Resources] who again wasn't there [and] Ross [Bennett] who stated he didn't know and the manager[']s statement.

They left it [for four] months also then made a malicious complaint/statement to police ... I was interviewed [by the Police] and they again agreed the only evidence that would prove without doubt my innocence or guilt had deliberately [been] left and not picked up even though they knew about it [on 26 February 2015] and [they] didn't report it till June 2015. They are now being investigated for malicious statements [to the Police] with the intent to get a person charged[.]

117 A more accurate recounting of these events is recorded by Commissioner Riordan in Buick Holdings (discussed further below).

118 Mr Smith was methodically cross-examined by Mr Kennedy over several days on some 28 topics or so (this number being derived from Mr Kennedy's original estimate of the issues raised by Mr Smith which needed to be covered): see the cross­examination of Mr Smith (T:59­125;14.09.15; T:9­187; 15.09.15; and T:1­120; 16.09.5).

119 The time taken in the Tribunal on this task largely reflects, in effect, the recording by Mr Smith of every workplace incident, disagreement or event (whether major or, viewed objectively, relatively minor) over the five and a half months that he worked for Mr Crisafio (and the fall­out therefrom), and which Mr Smith felt subjectively disadvantaged or harmed him and which, in his view, could be ascribed to the respondent's imputed or actual knowledge of his PTSD.

120 In short, every element of Mr Smith's claim was tested by Mr Kennedy. In addition, the respondent's view of critical events was put to Mr Smith. Neither aspect of this cross­examination altered Mr Smith's essential narrative of events as he recalled or characterised them.

121 However, I should record the following partial concessions or points made by Mr Smith:

• Mr Smith confirmed that he had a 'very, very poor memory since the accident [in 2011]'.
• Whilst frustration and irritability were not part of his symptoms, according to Mr Smith, depression was a part of his symptoms.
• Mr Smith said that when he commenced work with Mr Crisafio he was 'fit to work'. According to Mr Smith, PTSD was a disorder, not a 'serious illness'.
• Mr Smith nevertheless agreed that he would have to tell employers about his PTSD because of the need to see a psychiatrist and a psychologist.
• There was no need to tell Mr Crisafio about Mr Smith's workers compensation claim, based on legal advice indicating that that was an unlawful question.
• He was not concerned about not getting his job with Mr Crisafio if he had, in fact, disclosed his impairment on the job application form.
• When Mr Smith was asked how his PTSD (which he admitted 'was there every day') affected him in the workplace, Mr Smith said 'I don't know. I can't really say because I'm on medication'.
• Medical appointments for Mr Smith's PTSD could be accommodated because he did not take time off as 'he just [took] an hour [off] in the morning'.
• He always told his employers verbally about his PTSD.
• He denied complaining about his back, but admitted 'limping into the show room' and explaining that he had 'a bad back'.
• Importantly, he admitted that his attitude at work changed in September 2013 'because he was owed nearly $2,000 in ... wages' and 'every opportunity that [he] got, [he] would mention it'.
• He denied being 'negative' and said that he 'lov[ed] the [car] industry' and would, where necessary, keep his younger colleague (Mr Cloake) motivated. He admitted, however, that on 21 October 2013, he was unhappy 'because [his] cars weren't coming and [he, Mr Smith] was going to miss his bonus'.
• Concerning an incident with a vehicle arriving in Derby which had been damaged, Mr Smith alleged that Mr Crisafio had been in a rage and stormed off; Mr Smith denied the suggestion that it was he who had been angry or that he had lectured Mr Crisafio about his obligations to this customer.
• This Derby Hospital incident, and other concerns that he had about various incidents, transactions and sales and the effect (sometimes) on his income, all occurred prior to the written warning of 25 October 2013.
• Rather than PTSD being raised by him for the first time in his discussions with Mr Molloy after the written warning was given to him, he had asked Mr Molloy 'How can you give me this when you know I've got PTSD?' His full recall of the discussion (after Mr Molloy had said 'it's Joe's [decision]') and the immediate events that followed was:

SMITH, MR: And that's when I went up to Joe. And because I said to him [Mr Molloy], 'What do you mean it's Joe's [decision to issue the warning]'? And I can't say word for word but he then said, well you've had the issue of your wages, you've had your issue over the Derby deal, you've had this, this and this. And I went, 'Well, this is stupid. You know I've got PTSD.' And he says something about, well, you're always sat at your desk.

I said, 'Well, that's [my] job as a fleet manager. I have to be on the phone. I have to do things.' He says, 'Well, Joe wants you walking round the showroom.' And I said, 'Well how do I talk to fleet customers sitting ... there?' So that's when I went to go and see Joe. And Joe just turned around and just basically fobbed me off.

• Mr Smith was not going to change his approach after the written warning, the explanation being: 'I can't change, I've got PTSD'.
• Although, he regarded the written warning as a 'sham letter', he would nevertheless continue to 'do [his] best'.
• The discussion with Mr Molloy about attending meditation occurred 'within the first week of being there'.
• Mr Smith maintained that the reduction in salary caused by him giving up his second-in-charge role was unjustified as the increase was originally for him taking on the role of being Fleet Manager.
• Regarding an incident with a visiting external finance manager, Mr Smith denied being 'aggressive and confrontational' but admitted that he raised his voice 'because [the visitor] raised his voice as well'. He described the visitor as that 'idiot in finance'.
• Notwithstanding that Mr Smith was achieving target sales, he wanted more, and leads (potential contacts) were being 'burned' (that is, wasted) by their allocation to the less experienced Mr Cloake. Whatever the reason, this allocation apparently favouring Mr Cloake was 'unfair'.
• Mr Smith admitted that after he had complained, a lead was passed to him but he denied his text message comment to his wife ('... by the way finally got a lead passed to me, but [Mr Molloy] had already given it again to [Mr Cloake]. They tried to give it back [to Mr Smith]. F---k them.') referred to anything other than by then 'the deal was lost'. This event seemed to have occurred after the written warning was given to Mr Smith.
• Because of the allegedly 'unfair' allocation of leads, Mr Smith lost an estimated potential $30,000 to $40,000 in salary and bonuses.
• On 12 November 2013, Mr Smith had concerns about a computer screen report that he saw that seemed to show 30 leads had been, in effect, hidden from him. He said that he 'had been lied to ... for weeks'.
• He denied that his consequential unanswered query ('Does [Mr Crisafio] want me out or something?') meant that he thought, at that point, that he was 'being pushed out'.
• Mr Smith denied that he started to take personal effects (such as his ties and a coffee mug) home. He claimed that his pens, medication and food container were still there, and were never returned to him. He denied that he had ever had photographs on his desk, items that he allegedly took away with him.
• On 12 November, he could not contact Mr Molloy further (who had a sick child) nor could he find Mr Crisafio (whose door was closed). He was getting 'very, very stressed' and his 'chest [was] tightening up, [he] was starting to have an attack'. He thought that 'they're trying to get rid of me'. After speaking to Ms Jo Williams (employed in the dealership) he left to go and see his general practitioner.
• This 'attack' was the culmination of something that had 'been happening for weeks'.
• Thereafter, there were text message exchanges (on 13 November 2013) leading to notification by SMS to Mr Smith that he had been dismissed. Before that, Mr Smith indicated that he would work from home on the 16 contacts that he had individually emailed to his home email address. He claimed that he had permission from Mr Molloy to work at home which he had done before.
• As to text messages from Mr Crisafio on the morning of 12 November (asking Mr Smith to contact him 'urgently'), he conceded that in his text message answers two hours later he had not been at hospital but was, in fact, waiting to see a general practitioner at a 'Superclinic'.
• Mr Smith acknowledged that a few minutes after he had received a text message from Mr Crisafio (which he did not reply to), he was still able, however, to text Dr Dale. Further, he sent a text message to Mr Molloy (who was not at work) because he was Mr Smith's 'line manager'.
• Mr Smith admitted that, in effect, the real reason that he did not contact Mr Crisafio at this point was 'because he had been bullying [Mr Smith] and victimising [him] for the last six months'.
• Mr Smith said that he held on to his company car because he 'did not trust [Mr] Crisafio' and he 'did not believe [that the respondent was] going to pay [him] and [they] owed [him] thousands of dollars'. The vehicle was being held 'in lieu of [his] wages'.
• I record this text message from Mr Molloy to Mr Smith on 13 November 2013, which occurred in a number of exchanges shortly after notice of termination was given by text message:

Nigel[,] 16 contacts [leads taken 'home' via email] does not constitute a couple [of leads], or me being pathetic. Like always with you it's someone else['s] fault. Anyway you have been paid in full and you are not entitled to a November bonus. With regard to your Job [that is, Mr Smith trying to get his old job back] speak to Joe [Mr Crisafio]. Don't let your paranoia consume you. Joe does want his car back, do the right thing and let's put this behind us.

• The text message response of Mr Smith was, in effect, to continue to 'argue the toss' with Mr Molloy about his treatment at work and entitlements and his dismissal, but included the following allegation:

Paranoia or not you know what [I] suffer with (ptsd) as you [were] informed.

• Mr Smith did not attend the meetings on 18 and 25 November 2013 by driving his company car there. The car had been left at 'somebody's property ... who [he] knew' when it ran out of fuel. He had offered to give the Police the keys to the vehicle.

Mr Smith's interpretation of events and his approach to the hearing

122 I have already commented above on the sometimes selective, argumentative and unresponsive attitudes that emerged from some of Mr Smith's cross-examination.

123 In Buick Holdings, Commissioner Riordan in the Fair Work Commission observed of Mr Smith as follows, at [62] (emphasis added):

Mr Smith is a fairly unique individual. To use an Australian colloquialism, he is a 'good spruiker'. He is very good at talking but not very good at listening ­ a trait that undoubtedly makes him a good salesperson, whilst providing challenges for the conduct of these proceedings. I have taken this into account.

124 The circumstances of Buick Holdings (and the outcome of the case itself) were mentioned by Mr Smith several times in his evidence and submissions in this case. Indeed, the events surrounding the case were recounted by Mr Smith in support of his case. It is therefore appropriate that the events surrounding that matter are reliably recorded.

125 Mr Smith worked for the respondent (Buick Holdings Pty Ltd trading as 'DVG Automotive Group - Midland City Nissan (DVG)') as a salesperson in the used car division. He was employed by DVG from 5 June 2014 until his dismissal for misconduct on 25 March 2015.

126 It was alleged by DVG (see Buick Holdings, at [3]) that Mr Smith had 'fraudulently used the company['s] fuel card'; that 'he sent an inappropriate and offensive text message to his Manager, [a]lbeit by mistake'; and that 'he left his place of employment contrary to an instruction by his Manager to remain on site'. The case only proceeded upon the fuel card issue. However, Commissioner Riordan made some findings, negative to Mr Smith, on the offensive text message allegation.

127 These general observations made by Commissioner Riordan of Mr Smith's attitude, if not his character, are, with respect, shared by me and are consistent with what I observed of Mr Smith in both directions hearings in the Tribunal and in four days of hearing in this Tribunal. This is particularly so as regards Mr Smith 'providing challenges' in respect of the conduct of the proceedings. I will return to this matter in a moment.

128 Buick Holdings was not finally determined by Commissioner Riordan until October 2015, that is, until after Mr Smith had given his evidence in this Tribunal (in September 2015). In Mr Smith's final written submissions to the Tribunal (in November 2015), and building upon his earlier evidence, he claimed '... and I have just WON [sic] the [Buick Holdings] case'. However, this claim is only partly true.

129 Mr Smith was successful in respect of his claim of unlawful dismissal on procedural grounds. That is, he was denied a proper opportunity to rebut serious accusations made against him, allegations which led to his dismissal. This resulted in criticism of DVG's internal processes by Commissioner Riordan (see at [48] and [73]) and an award to Mr Smith of four weeks' pay plus superannuation, but with no reinstatement. Whilst dismissing (at [72]) any fraudulent intent, the Commissioner nevertheless concluded, at [56] (emphasis added):

I find that DVG [the respondent] had a valid reason to dismiss Mr Smith. DVG remain convinced that Mr Smith was driving a diesel vehicle on 23 February 2015, when he purchased unleaded fuel from a petrol station at Greenwood. This purchase was in breach of the DVG fuel card policy. Relevantly, Mr Smith has admitted that he has used DVG's fuel card to purchase fuel for his own vehicle. Mr Smith knew that such a practice was a breach of the fuel card policy without written authorisation. I have taken this into account.

Further, in assessing compensation, Commissioner Riordan also noted, at [81], that:

... Mr Smith sent an offensive text message to his Manager and ignored a lawful direction from his Manager to remain on site. These incidents would have resulted in significant and appropriate disciplinary action against Mr Smith. As a result, I do not believe that Mr Smith would have remained employed by DVG for a lengthy period[.]

130 As I have already mentioned, the facts and circumstances of Buick Holdings have some other curious parallels with allegations made by Mr Smith in this case. Thus, Commissioner Riordan records, at [23] and [24]:

Mr Smith claimed that his dismissal was part of a conspiracy to dismiss him by senior management, following an alleged assault perpetrated upon him by a senior employee.

Mr Smith asserted that the new Dealer Principal, Mr Tomeo, was out to 'get him'[.]

131 Indeed, in his written final address, Mr Smith would question whether his later difficulties in finding employment (after his dismissal by Mr Crisafio) were also part of 'a great conspiracy'.

132 Returning to the theme of Mr Smith 'providing challenges' in respect of the conduct of these proceedings, I mention the following examples which are illustrative on a number of fronts. First, there are Mr Smith's occasional acts of disruption in the Tribunal, such as this reprimand (one of many) from the Tribunal during the cross-examination of Dr Dale:

Mr Smith, please, would you just cooperate by sitting still, not waving bits of paper around? Mr Kennedy has got a difficult enough job to do anyway. So please just concentrate and listen and let him do his job.

(T:146; 16.09.15)

133 Secondly, contrary to the Tribunal's repeated directions to him, Mr Smith would defer to his mobile phone, even in the course of him giving his evidence. (Apparently, there are 'thousands of pages of notes' on his mobile device.) This was well after the point where all documentary material had been filed in the case, including everything necessarily downloaded from his mobile phone. Unsurprisingly then, much of Mr Smith's extensive documentary material filed in the case was in the form of paper copies of screen dumps (or shots) from SMS text messages. Often establishing the precise date of these messages, and their context, was no less problematic than managing the volume of paper and duplication that this whole process produced. Mr Smith never seemed to appreciate these difficulties or, if he did, he did not seem to care too much about the problems thereby caused.

134 However, apart from these matters, Mr Smith's perhaps unusual attitude to reading non-SMS material (and his attitude to important correspondence relevant to his case, and to his mobile phone) are captured in this exchange in the Tribunal:

KENNEDY, MR: ... So in terms of Dr Frederick [Ng's report filed in the Tribunal] ­ so, you've obviously read his report?

SMITH, MR: I don't read reports.

KENNEDY, MR: They're part of your evidence?

SMITH, MR: I don't read doctor's reports because half the time I don't understand what it means and half the time things like that was just how the doctor writes it. I don't read doctor's reports. I don't read letters from lawyers. If you send me a letter I don't read it. I will read all of it, and I will read it when I'm turning up, and then I use my phone. That's why I asked if I can use my phone, because everything that I do I put a note in. If it's relevant there will be a note. So if you're asking me a question, if you allow me to use my phone, I will have a note in there. That's the only way I can remember things. A lot of the things about the accident you're asking I don't remember anything about the accident.

KENNEDY, MR: No?

SMITH, MR: But it's what I've been told afterwards.

(T:69; 14.09.15)

135 As much of Mr Smith's case turns upon the reliability and the veracity (including the accuracy) of his evidence to sustain serious allegations it is, I think, important to record illustrative instances which might shed light on this issue. Claiming not to read medical reports filed in support of one's case, here filed to establish a diagnosis of PTSD (and relied upon by Mr Smith), is interesting to say the least. It certainly was challenging to anybody who wished, quite reasonably, to cross­examine Mr Smith on their contents.

136 I also note the possible contradictions concerning Mr Smith's current financial and other status. In communications with the Tribunal and in directions hearings, Mr Smith repeatedly drew attention to his alleged lack of financial resources to prepare for his case. However, this seems at odds with this exchange in the Tribunal where Mr Smith, talking about the present (but in the context of his motivation to work after the 2011 accident), said (emphasis added):

SMITH, MR: I'm - I'm quite financially sound. I don't need to work. I've not worked now for nearly seven months.

KENNEDY, MR: Sorry. You're financially - you're saying you're financially sound?

SMITH, MR: Yes.

(T:87; 14.09.15)

137 In Buick Holdings, it is recorded by Commissioner Riordan, at [68], that Mr Smith 'has been unable to secure long term employment since his dismissal and is now the recipient of a disability pension'. At [54], the Commissioner said: 'Mr Smith advised me ... [that he] is surviving on the payment of $175 per week from a Disability Pension'. The Commissioner also records, at [14], that 'Mr Smith was off on workers compensation from 26 February 2015, until his termination' on 25 March 2015. In an email to the Tribunal dated 28 April 2015 Mr Smith said that he did not,

... have the resources ... I am doing my best but I do not have a job [or income, and] I am living on [$]650 a week[,] no [C]enterlink [a]nd can't pay the mortgage[,] [c]an't get a job due to Joe's [a]lleged offences[.]

138 In his evidence to this Tribunal, Mr Smith described himself as 'unemployed'. However, in mid­August 2015, in order to obtain a reduction or waiver of the Tribunal's fees for a summons to witness, Mr Smith produced to the Tribunal a Commonwealth Pensioner Concession card indicating that he was, indeed, receiving a Disability Support Pension. This means, generally speaking, that Mr Smith has been assessed by Commonwealth agencies as having a physical or psychiatric impairment with an inability to work, or an inability to be retrained for work, for 15 hours or more per week within the next two years because of that impairment.

139 Mr Smith's Pensioner Concession Card commenced from 6 May 2015 and is due to expire on 31 January 2017. No evidence of the circumstances of that assessed disability (or the further bout of workers compensation referred to in Buick Holdings) was ever raised in this Tribunal, but one may assume that PTSD continues to be at least a part of Mr Smith's present ailments. Dr Dale confirmed that at the date of the hearing she is still treating Mr Smith for PTSD.

140 It would ordinarily strike one as odd that a disability pensioner (whose work capacity is necessarily limited, and whose income and assets are means tested) could describe themselves as 'financially sound' and that, consequently, they did not 'need to work'.

141 At the risk of labouring the point, at least one reference should be made to the objective circumstances concerning the urgent recovery from Mr Smith after his dismissal (using solicitors) of the dealership's company car, for it may also serve to illustrate the way in which Mr Smith sometimes views the world. There were suggestions made by Mr Smith to the effect that it was 'his' vehicle and that he was paying for it, and that he was entitled to use it whilst working out his notice. Further, his view was that he could properly leverage the vehicle's return for the payment to him of allegedly outstanding emoluments.

142 The vehicle was, in fact, a 'company car' (as Mr Smith himself sometimes referred to the vehicle); it was not being paid for by Mr Smith. It was always a company vehicle, heavily subsidised with its use dependent upon Mr Smith continuing to work for the respondent. At the relevant time, Mr Smith had ceased to be so employed. In fact he had been, rightly or wrongly, summarily dismissed; he was not, therefore, 'working off his notice' as he alleged in a later statement. Mr Smith was required to return the vehicle to its lawful owner as soon as was practicable; this he did not do, and distance from events does not seem to have changed his opinion on the rectitude of his actions.

143 Mr Smith was probably in law no more than the bailee of the car. But whatever the exact status of his relationship with the vehicle was, it was supplied to him as 'fully maintained' from the respondent's 'vehicle stock', but only in connection with his employment. It is true that Mr Smith was required to contribute to his employer $45 per week to cover at least part of the employer's fringe benefit taxation obligations, but this does not mean that Mr Smith was 'paying' for the vehicle in the sense apparently suggested by him. The true costs of a late model fully maintained vehicle (a vehicle worth about $50,000) would have vastly exceeded Mr Smith's contributions.

144 It would not be unreasonable in such circumstances for an employer to pursue the return of the vehicle, which was a new vehicle, by all legitimate means, including engaging solicitors. However, Mr Smith saw this as simply more threatening behaviour by Mr Crisafio. Others might legitimately take the view that Mr Smith was involved in risky business by ignoring, in the circumstances, lawyers' letters to immediately return the vehicle to the dealership.

145 I mention this matter at length because it tends to illustrate Mr Smith's propensity from time to time to sometimes 'mischaracterise' (in his favour) and also to overly dramatise important transactions or events. An objective view of events is, I think, at odds with Mr Smith's view of this transaction. This is not to say that Mr Smith did not genuinely, if erroneously, think that he might have had some rights in the matter.

146 However, nothing material appears to turn on all of these events, at least so far as Mr Smith's central allegations against Mr Crisafio are concerned. By themselves, such apparent contradictions (if that is what they are) and Mr Smith's perhaps extravagant answers, both as regards his financial status and his explanations for failing to read relevant medical reports; his disruptive behaviour in the Tribunal (including his continued use of his mobile device in the course of the hearing); his attitude to the return of 'his' vehicle; and his quite misleading description of the actual result in Buick Holdings (a case he himself raised), are probably neither here nor there in the overall scheme of things.

147 However, when taken together with other more important material (such as Mr Smith's approach to answering questions in cross­examination) they might, besides making the management of the case often quite 'challenging', raise possible doubts about Mr Smith's overall transparency of purpose, including, I regret to say, whether he has any manipulative tendencies.

148 Of course, some allowance must be made for the stress that Mr Smith was under in respect of the delays and events of the first two days of the hearing (see above). Further, allowance must be made for his diagnosed psychological condition, as he is still being treated for PTSD. That condition is quite likely to have affected his memory, as his treating psychologist (and Mr Smith) both thought could be the case. Mr Smith's 'unique' personality might well have contributed to his reactions to the process of cross-examination (and more generally).

149 There are obvious dangers in attaching labels to such matters as an applicant's 'personality', but the impression that I was left with after closely observing Mr Smith's conduct and demeanour both at numerous hearings (where he confidently represented himself) and in the witness box, was that of an individual who very much liked to control the flow of events and to set the agenda as he thought was appropriate, regardless of protocol or the (objectively) reasonable concerns of others. His illness was sometimes perhaps a useful prop in stage managing events with this end in mind.

150 Now, none of this suggests that Mr Smith is either being deliberately dishonest or that his version of events is consciously misleading. Rather, it suggests the possibility that on some occasions Mr Smith is, for whatever reason, liable to inaccurately recall, or to misconstrue or exaggerate events, events which, if construed more objectively or accurately, might suggest weaknesses in his approach, recollection or understanding of relevant transactions.

151 Mr Smith has, of course, remained utterly and genuinely convinced about the essential narrative and strength of his case and how badly he had been deliberately treated (and, particularly, his view of Mr Crisafio's alleged power and influence in the events under review, including Mr Crisafio's alleged ability to stymie Mr Smith's future employment prospects). But, taken overall, and combined with the view that I have reached about Mr Smith's sometimes selective, argumentative and unresponsive attitudes that emerged in cross­examination, as to its general reliability, Mr Smith's own evidence as to critical events must be approached with considerable caution.

152 Unsurprisingly, counsel for the respondent submitted that the evidence of Mr Smith was sometimes vague and contradictory. There is some substance in this submission. Mr Kennedy urged the Tribunal to find that Mr Smith's evidence should be regarded as 'unreliable'.

153 Mr Crisafio told the Tribunal that at no stage following the job interview did Mr Molloy tell him that Mr Smith had disclosed to him that he had PTSD or that he had suffered extensive injuries in the course of his previous employment, and at no time prior to 25 October 2013 (when Mr Smith was given a warning letter) was he aware that Mr Smith suffered from PTSD or that he had suffered extensive injuries in the course of his previous employment.

154 Mr Crisafio said that he 'did not discriminate [against] people based on their health issues, race, age, and [that he had] promote[d] and pract[ised] a good working environment for [his] staff members'. Indeed, in his April 2014 response statement, in effect, called upon Mr Crisafio to treat him in a similar (that is, a non­discriminatory) way as Mr Crisafio had treated two of his (identified) senior employees who were, according to Mr Smith, 'gay', and another identified employee who was 'seriously obese'.

155 In addition, Mr Crisafio said that he 'never bullied [Mr Smith]'. In his witness statement, Mr Crisafio said, at [11] ­ [17]:

Upon commencement of [Mr Smith's] employment, [he] performed well and achieved his sales targets of 20 new cars in June and July 2013.

...

On 7 August 2013, [Mr Smith] was promoted to Fleet Manager and Assistant New Car Manager, which was a second-in-command role, working under [Mr Molloy].

On 9 August 2013 a new employment contract was issued to [Mr Smith] which provided for [Mr Smith's] retainer to be increased to $1,000.00 per week plus commissions and bonuses ...

The Database Obligation [to keep leads data confidential to the business] remained part of the second employment contract ...

In addition to selling cars, [Mr Smith's] new role required him to:

1. lead and mentor all junior sales staff;
2. set an example by maintaining a positive attitude around the workplace; and
3. perform those tasks that were expected of a car salesman including being prudent in chasing down leads, performing service drop-offs and writing to existing or potential lead customers.

156 Mr Crisafio said that Mr Smith 'had been in the industry long enough and according to previous conversations [that he] had had with him, [he] told me that he had been a 2IC in [a] previous dealership'.

157 In relation to the applicant's work performance and demeanour in August and September 2013, Mr Crisafio said, at [41] and [42]:

[Mr Smith] continued to reach his sales targets in August and September 2013 [but these dropped off at the end of October, and in early November] ... Despite [Mr Smith] reaching his sales targets, at or about this time, I began to have some concerns about [Mr Smith], in particular ... when people annoyed [Mr Smith], he would frequently comment that he 'would harm them' or 'do away with them' ...

158 After referring to his checking of certain apparent news sites visited by Mr Smith in work time on the dealership's computers (which apparently showed graphic scenes of political violence) Mr Crisafio continued as follows, at [43]:

... I did not question, or raise these issues, with [Mr Smith]. Although I was initially quite disturbed by them, [Mr Smith's] 'peculiarity' didn't seem to negatively affect his sales so I just left it at that.

159 In early October 2013, Mr Smith became the 'Acting New Car Sales Manager' to cover for Mr Molloy who was on leave. On the Derby Hospital damaged vehicle incident, Mr Crisafio's recollection was as follows (at [57] ­ [61]):

As the Derby Hospital was a big client of the Dealership, I told [Mr Smith] that I would handle it and said that I [was] aware of our legal obligations with regards to the vehicle and that [he] should not stress out about it I also told [Mr Smith] to 'leave it to me and I will sort it out' ... At no stage did I become angry nor did I yell at [Mr Smith].

160 There followed other incidents, including a claim by Mr Smith that he had been underpaid (the context of which was explained by Mr Crisafio, and the allegation denied), which led to this assessment (at [78] ­ [82]):

... [Mr Molloy] and I noticed a decline in [Mr Smith's] work performance and general attitude. Whilst [Mr Smith] was still selling [sufficient] cars, there seemed to be a negative change in terms of his attitude, cooperation and regard for others. In particular, I observed during this period that ... he was negative to junior staff and not encouraging to them ... he resisted performing the tasks that were expected of all sales staff, such as doing service drop offs or writing fleet letters to new clients [and] he was also particularly disinterested when it came to used car sales. [Mr Smith] was also disruptive, overpowering and excessively negative to other staff. He would openly talk about how bad the industry was and was not projecting a positive or supportive attitude. Such an attitude would have been bad enough coming from a sales representative, but coming from [Mr Smith] in his 2IC role, it began to create an unhealthy, negative work environment.

161 This led to the issue of a written warning, reproduced above. See [83] ­ [88]:

On or about 25 October 2013, I told [Mr Molloy] to issue a formal written warning to [Mr Smith] requiring him to improve his demeanour and attitude around the workplace ... The written warning was necessary to emphasise to [Mr Smith] that as a 2IC, [Mr Smith] really needed to lead by example. The whole intention behind issuing the written warning was for [Mr Smith] to realise his poor showing/behaviour, and to prompt him to take positive steps towards improving his performance and attitude. It was not meant to 'drive' him out of employment after all he was still selling cars. [Mr Smith] never asked me if I was going to get rid of him or about his sales leads. I only became aware that [Mr Smith] had raised these issues because [Mr Molloy] told me.

162 As to when Mr Crisafio became aware of Mr Smith's PTSD, Mr Crisafio told the Tribunal (at [89] ­ [91]):

I did not know anything about [Mr Smith's] PTSD until [Mr Molloy] told me that [Mr Smith] mentioned this to [Mr Molloy] after he gave [Mr Smith] the written warning. [Mr Molloy] told me that [Mr Smith] ha[d] told him that he suffered from PTSD and that he had opted to step down as 2IC, back to being a normal new car salesman. Upon [Mr Molloy] telling me about [Mr Smith's] PTSD, I told [Mr Molloy] that [Mr Smith's] PTSD was not an issue as long as [Mr Smith] wanted to continue to work and kept reaching his quota. [Mr Molloy] agreed with me. From memory I believe it was around this time that [Mr Smith] disclosed that he had a previous Workers' Compensation Claim in relation to an accident when he worked for Giant Hyundai [AHG].

163 Mr Crisafio said that he 'never discussed' his PTSD with Mr Smith, nor did he ignore him. After the warning letter, he observed the following (at [102]):

Over the next couple of weeks after [Mr Molloy] gave [Mr Smith] the written warning, I noticed [Mr Smith] became distant, disinterested in his work and that his personal effects started disappearing from his desk.

164 As to the sequence of events on 12 November 2013, Mr Crisafio's recall was as follows (at [122] ­ [142]):

On 12 November 2013, I was in my office talking to another sales representative about a customer complaint. The door to my office was open and the staff knew that they can speak to me if they need to. I saw that [Mr Smith] left the office in a rush. I inquired about this with Josephine Ann Williams ('Jo'), the Dealership's Financial Controller, and was told that [Mr Smith] had told her he was unwell. To me, something did not seem right. Car sales is a highly competitive industry. The manner in which [Mr Smith] left, coupled with the fact that [Mr Smith's] personal items/effects had been removed from his desk, particularly since he received the written warning, sounded alarm bells.

I decided to check his work email for anything that might explain what was happening. What I observed from his emails alarmed me ... It showed that before [Mr Smith] 'rushed' out of the office, he had managed to send about 16 emails to his personal hotmail email account, each one containing the contact details of the Dealership's fleet customers ... What [Mr Smith] had done was in clear contravention of the Database Obligation [clause of his contract] as he is well aware that the Dealership's database of customers is strictly confidential, and belongs to the Dealership. Such database, or customer details/particulars are strictly not to be sent, or taken, away from the Dealership's premises. [Mr Smith's] explanation of his needing those contacts to 'follow up' with clients, and to work from home, was not believable as [Mr Smith] had never to my knowledge worked from home before. I couldn't even get [Mr Smith] to take [inquiries] on a given day within 5 minutes of knock off time. Further, the 16 client e-business cards that he had emailed related to deliveries made months ago.

As such, I had strong reason to believe that [Mr Smith] was going to go to a rival dealership, and his actions in emailing the contacts was so that our competitors could poach the Dealership's clients. Although these were my concerns, I would have still afforded [Mr Smith] a chance to explain if he was interested to do so. I myself left several voice messages for [Mr Smith] to call to me and I texted [Mr Smith] to call me urgently ... [Mr Smith] texted he was having some tests done at hospital and would call later ... I flew to Sydney the night when he left the office on 12 November 2013, but instructed [Mr Molloy] to follow up and try to contact [Mr Smith] to seek an explanation from him. The next day I was told by [Mr Molloy] that he too had not heard from [Mr Smith]. As a consequence, I was left with very little choice and told [Mr Molloy] to dismiss [Mr Smith].

165 Mr Crisafio's recall of the events immediately following the dismissal, was as follows (at [143] ­ [154]):

My decision to dismiss [Mr Smith] had nothing to do with [Mr Smith's] PTSD but was as a result of [Mr Smith's] wrongful action in taking part of the Dealership's database and continued failure to improve his attitude around the workplace. Only after [Mr Smith] was dismissed, did the Dealership receive a medical certificate stating that [Mr Smith] was not fit for work for the period 13 to 18 November 2013 ... When the Dealership terminated [Mr Smith's] employment on 13 November 2013 ('Termination'), [Mr Smith] was in possession of a car, a Kia Sorrento, which was valued at $50,000 ... [Mr Smith] took the KIA Sorrento when he left work in a rush on 12 November 2013. The KIA Sorrento belonged to the Dealership and [Mr Smith] was allowed use of it only whilst he was working. [Mr Smith] refused to return the car to the Dealership despite numerous requests by me by text message ... [Mr Smith] said that he would only hand the car back when all monies owed to him were paid (which I always intended to do) and [when] he was paid compensation for lost earnings. I made multiple requests for the car to be returned but [Mr Smith] continued to refuse [to return the car] ... I never threatened [Mr Smith] nor did I threaten to get bikie friends involved. The Dealership paid [Mr Smith] all the monies he was owed and confirmed that all outstanding superannuation would be transferred in December which was the earliest we could fix an error that we had made with [Mr Smith's] superannuation ... Despite this, [Mr Smith] insisted that the Dealership pay him more money for lost earnings, which I refused because he was not entitled to it. [Mr Molloy] also asked [Mr Smith] to return the Dealership's car but without any luck.

166 Mr Crisafio's other evidence covered the following matters:

• on the visiting naturopaths: '[the] introduction of Rodrigo and Gonzalez [the naturopaths] to [Mr Smith] was no different from what I would do for my other staff .... [t]his [was] out of a genuine concern for them, and their well-being';
• an admission was made by Mr Crisafio that Mr Crisafio did say to Mr Smith (but not so as to embarrass him) that he was being 'stubborn or "pig-headed" for not having his back treated';
• alleged conversations with others concerning the state of Mr Smith's health were denied by Mr Crisafio;
• rational explanations rebutting Mr Smith's allegations of underpayment, lost commissions and the unfair allocation of leads were given by Mr Crisafio; and
• an alternative version of the meeting at the dealership ('on or about 25 November 2013') concerning the return of Mr Smith's KIA work vehicle was given by Mr Crisafio; Mr Smith was, according to Mr Crisafio, the party who was not calm at the meeting

167 Mr Crisafio was extensively cross­examined by Mr Smith. Mr Crisafio presented as a methodical, calm and accurate witness, freely conceding matters when he could not recall or did not know the answer. Nothing that was said by Mr Crisafio in cross-examination materially changed Mr Crisafio's position or other evidence on the matters in issue.

168 The following matters arose from his cross­examination:

• he agreed that there was no evidence of improper use of that data by Mr Smith;
• he denied that there was any collusion in the drafting of the respondent's witness statements;
• Mr Molloy was responsible for the day­to­day supervision of Mr Smith, including anything that arose out of his PTSD;
• he decided to treat knowledge of Mr Smith's PTSD as 'confidential' in the firm; and
• he conceded that a meeting at the dealership where the return of the vehicle was discussed may have become 'heated'.

169 On the issue of the extent of his knowledge of Mr Smith's PTSD and his reaction to it, after he was told of Mr Smith's PTSD by Mr Molloy, Mr Crisafio said:

Well, we ­ once we knew about it. I mean, I'm new to it myself. At that time I had no idea. Once we knew about it ­ obviously [Mr Molloy] knew a little bit more about [PTSD] than I did, and he said now I can, you know, work with [Mr Smith] and understand that if he has to bolt out the door, or if he has to go to his doctors, we can understand and work with him. It was a very short amount of time. We ­ it's not like we all sat down and discussed, okay, how we're going to deal with this, how we're going to work with this, what can we do for [Mr Smith] to make it easier for him. There was ­ we never had these discussions, or ­ unless [Mr Molloy] had them with [Mr Smith]. I certainly never had these discussions, and I was never asked to have a discussion with you [Mr Smith] regarding this matter ...

I believe we were treating you very well from day [one], and I ­ unless you had come to me and said, 'I need to do this', or 'I need certain time off', we would have made those adjustments for you, but you've never walked in and said, 'Hey, this is my problem', or can ­ 'Can I not do this? Can I do that? Can you move me ­ can you move my office?' We would have made adjustments for you, but it was up to you. Once you told [Mr Molloy] about your problem with PTSD, then you could have further gone in there yourself and said these are the changes I need to make, and I'm sure we could have supported you, but you never surrendered [sic, offered] any changes that you may have required. So as far as I was concerned I didn't think we were doing anything wrong in the first place.

(T:143­144; 17.09.15)

170 To conclude, I should record this exchange, concerning the naturopath Gonzalez, as particularly instructive of Mr Smith's calmer attitude, perhaps after some reflection by him. After Mr Crisafio spoke of his own back problems, and how Gonzalez had cured him, he said:

[Mr Crisafio]: ... And that's why I was probably stepping up, going over, trying to help you, not destroy you.

[Mr Smith]: Yes, I totally understand that. Yes, I totally understand that?

[Mr Crisafio]: Thank you.

(T:123; 17.09.15)

171 Mr Molloy's evidence was generally corroborative of that of Mr Crisafio's evidence. So far as is presently relevant, Mr Molloy said in his witness statement, at [8] ­ [19]:

At the interview, [Mr Smith] showed great potential and had more industry experience than most applicants. At no point during the interview did [Mr Smith] mention that he suffered from [PTSD] or the need to attend regular doctor's appointments. I never told [Mr Smith] to not write down that he suffered from PTSD on his job application as I did not know that [Mr Smith] suffered from PTSD at that time. I agreed to hire [Mr Smith] on the spot as a new car salesman ... [Mr Smith] showed promise and was a very good employee at first. During August 2013, [Mr Smith] was promoted to the role of fleet manager and assistant new car manager, working under my management ... During an early stage of his employment on a date [that] I do not currently recall and in general conversation, [Mr Smith] mentioned that he had previously been involved in a workplace accident. [Mr Smith] did not mention anything about PTSD at this time. After a few months when he commenced employment with the Respondent, [Mr Smith] would frequently complain to me and other staff members that his back was leaving him in agony. One day, I saw that [Mr Smith] could barely walk.

172 After detailing his involvement with recommending that Mr Smith visit the naturopaths, Mr Molloy continues as follows, at [26] ­ [35]:

[In] or about August/September 2013, [Mr Smith] told me that he used to be a police officer in Western Australia but was asked to leave from the police force [a matter denied by Mr Smith]. On a date I cannot recall, [Mr Smith] also told me that he came from the military. Even when [Mr Smith] told me about his employment with the military and the police force, he did not mention anything about PTSD. During September and October 2013, I noticed a rapid decline in [Mr Smith's] performance. [Mr Smith's] behaviour was disruptive, overpowering and negative. [Mr Smith] would talk openly with other staff members about how bad the industry was and was not projecting a positive attitude. Whilst [Mr Smith] was selling cars, he was negative towards junior staff and resisted performing some tasks that were expected of all sales staff, such as doing service drop-offs or writing fleet letters to new clients. [Mr Smith] would also miss opportunities for cross selling by ignoring opportunities to speak with clients. At one point [Mr Smith] refused to speak with a client that had come to the dealership to see him. I had to find someone else for this client to speak with. This is not the kind of behaviour that I expected from a 2IC.

173 Mr Molloy's recollection of the written warning given to Mr Smith is as follows (at [41] ­ [47]):

During October 2013, I went on leave and asked [Mr Smith] to fill in as acting Sales Manager whilst I was away. On or about 25 October 2013, when I came back from my leave, I was told by the dealer principal, [Mr Crisafio], to issue a formal warning to [Mr Smith] requiring him to improve his demeanour and attitude around the workplace which had become unbearable. I then met with [Mr Smith] where we conducted a performance management review and gave [Mr Smith] a formal warning ... The written warning listed what Joe and I thought [Mr Smith] needed to improve on and gave [Mr Smith] an opportunity to address those issues. [Mr Smith] seemed surprised that he had been issued with the written warning and commented that he had never received one of those before. I explained that it was because his performance had rapidly declined over the past couple of months. At no point during that meeting was [Mr Smith] asked to sign the written warning.

174 As to events after the warning, Mr Molloy said (at [50] ­ [57]):

I never made any derogatory remarks to [Mr Smith]. On or about 26 October 2013 (the day after the written warning was prepared), [Mr Smith] and I had a discussion. During that discussion [Mr Smith] asked me if [Mr Crisafio] and I still wanted him to work for the Respondent, to which I replied yes. [Mr Smith] then told me that he was suffering from PTSD and he was seeing doctors to treat him. This was the first time that [Mr Smith] told me that he suffered from PTSD. At no other time prior to this did [Mr Smith] mention PTSD to me or make any reference to PTSD. I told [Mr Smith] that he was always welcome to take a breather and that if he got under pressure and felt worked up, he could walk down the road for a while. All [Mr Smith] had to do was give me a nod and I would know he needed a break. I told [Mr Smith] that if he needed an extended break, to let me know.

175 Mr Molloy also gave evidence about his own experiences, his advice to Mr Smith, and Mr Smith's return to a sales role (at [58] ­ [73]):

I told [Mr Smith] about certain issues that I had gone through and how I had decided to handle those issues moving forward without any medication. I also told [Mr Smith] that I read an article about new studies that meditation helps people who suffer from PTSD. I said that in my own experience I receive benefits from meditation and there are other people who meditate and enjoy it and embrace a holistic approach in life. I did not suggest or force him to try Buddhist meditation. I was only informing him of what I recently read about meditation. I wanted to share what I read because I cared about [Mr Smith]. [Mr Smith] and I spent a lot of time together and I wanted to see him well. I was genuinely concerned for him. At no point during (or afterwards) the discussion did I make fun of [Mr Smith] about his PTSD. I did not see or hear anyone comment about his PTSD. [Mr Smith] told me that he had tried everything. During the [d]iscussion, [Mr Smith] and I agreed that he could step back from his role as fleet manager/2IC and do more of a sales role. [Mr Smith] and I agreed ... that this would benefit [Mr Smith]. I did not say anything after that and my discussion with [Mr Smith] ended ... Despite having been issued with the written warning, [Mr Smith's] attitude in the office did not improve.

176 Mr Molloy's evidence also covered the allocation of new car leads and the events of 12 and 13 November 2013, and his attempts to retrieve the company car from Mr Smith. On the departure of Mr Smith from work on 12 November 2013 and his subsequent dismissal, Mr Molloy said (at [108] ­ [122]):

I went to [Mr Smith's] desk and saw that his personal belongings were not on his desk anymore. This is highly unusual behaviour for any salesperson. For example, [Mr Smith's] mug and screw driver set were not there. [Mr Smith] always had his screw driver set in his office as he uses them when he needed to change a car's licence plate. This does not make sense for someone who was sick and planning on staying at their employment once they returned from sick leave. [Mr Crisafio] and I saw this as an indication that [Mr Smith] was planning to move on. As far as I am aware, [Mr Smith] had never worked from home. [Mr Smith] never wanted to work in his own time let alone work from home. [Mr Smith] did not follow up on leads during weekends. There were sales representatives who would follow up on leads during weekends, but [Mr Smith] had not done this during his employment with the Respondent. When a lead comes up on a weekend, [Mr Smith] would wait for Monday to follow it up. [Mr Crisafio] instructed me to dismiss [Mr Smith] for the following reasons:

1. [Mr Smith] had forwarded the Respondent's fleets client database to the [Mr Smith's] personal email; and
2. [Mr Smith's] attitude remained poor despite after being issued with the written warning.

[Mr Smith's] employment was not terminated because of his PTSD. The termination of his employment was not related to any of his health issues. [Mr Smith] and I had already resolved how we could manage his PTSD during, working hours, and I addressed those issues and worked through them with [Mr Smith].

177 Mr Molloy was also cross­examined by Mr Smith, but nothing that was said by Mr Molloy in cross-examination materially changed Mr Molloy's position. He did apologise to the Tribunal and clarified his earlier incorrect answers concerning the 'real' reason for retrieving the company vehicle from Mr Smith. However, nothing turns on that clarification as no discriminatory motive is disclosed.

• If Mr Smith's back injury had been mentioned at interview, then he would have had to raise it with Mr Crisafio, but he did not see it as a necessary problem in employing Mr Smith.
• He had heard of PTSD prior to Mr Smith mentioning it to him.

179 In cross­examination, Mr Molloy said the following as to his recollection of the critical discussion with Mr Smith when Mr Smith revealed his PTSD:

... when you told me about it and we talked about it and it was one of the reasons that ­ that you were having issues and how you were feeling in the dealership, I sat down with you and I said, 'Nigel, you can ­ if you need to get out of here if it gets too much, you get anxiety, whatever, if you need to go for a walk,' I was completely open to it and I made other suggestions which I thought were helpful at the time just because of what I had read and stuff like that, so, for me, that is the first time that I heard about [your] PTSD[.]

(T:210; 16.09.15)

180 The Tribunal asked Mr Molloy specifically about his and Mr Crisafio's identical assessment of Mr Smith as eventually becoming 'disruptive, overpowering and negative'. His answer was as follows:

[THE TRIBUNAL]: I'm a little bit confused [here]. 'Disruptive, overpowering and negative' is a pretty damning assessment from one of your team, and yet the examples [that] you have given are ­ well, [he was] irritating, but at the moment they don't ... really amount to 'disruptive, overpowering and negative' [examples] it seems to me. So is that an exaggeration there or is ­ are there other examples of Mr Smith causing a bit of havoc in the ­ amongst his colleagues and others because that's the impression that paragraph [of your witness statement] gives, and [the] examples you give don't seem to match that?

[Mr MOLLOY]: Okay. From what I can recall, you know, by ­ by this stage, Nigel was quite negative and ... not easy to work with. So, I mean, look, is it a little bit of an over exaggeration? I ­ I don't know. He was certainly disruptive, as in that he wasn't really very happy at work. He wasn't happy to speak to people sometimes. He would spend long times with other people just talking and ­ and generally just having a whinge, so ... he's uncooperative and seemed to be not focused ...

[THE TRIBUNAL]: ... So, he's uncooperative and seemed to be not focussed on his job?

[MR MOLLOY]: Yes. Yes, that would be a reasonable ...

(T:225; 16.09.15)

181 I accept Mr Kennedy's submission that it was both Mr Crisafio's and Mr Molloy's unchallenged evidence that anyone who acted as an employee in the same manner as Mr Smith would have received a similar written warning.

182 Finally, there is Ms Jo Williams' evidence, comprising her witness statement and her oral evidence. Ms Williams was, at the relevant time, the dealership's Financial Controller. She had witnessed or observed some of the central events in the narrative of the case. Ms Williams was extensively cross­examined by Mr Smith. Her evidence generally corroborated Mr Crisafio's case, particularly her impressions of Mr Smith's demeanour at relevant points. In the circumstances of the case, it is unnecessary to set out in any further detail Ms Williams' evidence.

183 With few material exceptions (such as what precisely transpired at the initial job interview), the parties generally agree on the broad sweep of events, but with different interpretations, emphasis or precise recall of relevant episodes. In the end, however, such differences do not, in my view, make much substantial difference to the central issue in the case. It is therefore generally unnecessary to catalogue the minutiae of each party's competing interpretative chronology of events and to then rule on each specific contention.

184 Many pages could, for example, be 'wasted' on determining precisely who said what (and when and where they exactly were) on 12 November 2013. The significant fact, so far as that critical day is concerned, is that Mr Smith, after notifying one member of staff, left his work premises to seek medical assistance but in a context where the employer, rightly or wrongly, assumed that he was manifesting an intention not to return to work in circumstances justifying his summary dismissal. That decision by Mr Crisafio was made in a particular context. That wider context was of a deteriorating relationship between employer and employee, particularly after the written warning of 26 October 2013.

185 Mr Smith's perception of this wider context manifested itself in a severe panic attack which led him, on that day, to urgently depart his workplace for medical treatment and was, it appears, the main cause of his failure to return urgent calls to Mr Crisafio. In any event, the deteriorating relationship is an established fact but one that, like most things in this case, was interpreted (or reacted to) very differently by each party.

186 Whether Mr Smith was justified in leaving and proposing to work from home (by taking contact data), and whether the circumstances justified him failing to return calls, and whether, in response, this characterisation of Mr Smith's actions by Mr Crisafio was objectively correct or incorrect (and, indeed, whether any party breached their contractual or other obligations) are matters which are ultimately irrelevant to the central issue to be decided in this jurisdiction.

187 As I foreshadowed at the commencement of these reasons, that central issue is whether it may be said that the applicant has satisfactorily proved that what Mr Crisafio did on that and the following day (and in his earlier treatment of Mr Smith) was done on the ground of Mr Smith's impairment. That is, Mr Smith must prove that his impairment was what actuated or moved Mr Crisafio.

188 Where an alleged discriminator has no knowledge of a person's impairment, it will usually be very difficult, if not impossible, to establish that discrimination has occurred: see Rafin. That case is summarised by the learned editors of the Australian and NZ Equal Opportunity Commentary (CCH, at [ 4­330]) as follows (emphasis added):

The complainant's club membership was terminated because of his behaviour. The complainant's behaviour was affected by his psychological condition. However, there was no evidence that the club was aware of his psychological condition and it was accordingly impossible for the Federal Court to conclude that he had been discriminated against on the ground of his psychological disability; the focus of the Act was on the conduct of the alleged discriminator, not on the effect on the complainant.

189 The learned authors of Federal Discrimination Law (Australian Human Rights Commission, 2011) cite Rafin, at [5.2.2], noting that it is consistent with the obiter remarks of Emmett J in Purvis v New South Wales (Department of Education and Training) at first instance ([2001] FCA 1199; [2001] FCA 1199; (2001) 186 ALR 69 at [35]):

[W]here an educational authority is unaware of the disability, but treats a person differently, namely, less favourably, because of that behaviour, it could not be said that the educational authority has treated the person less favourably because of the disability[.]

190 Further, Mr Smith must prove that such actions resulted in the unequal treatment of him in comparison to another person (not Mr Smith) who could hypothetically be regarded as being in the same position as Mr Smith, but without his impairment.

191 I will return to these overarching matters in a moment. First, it is necessary to consider the keystone of Mr Smith's claim, a case built upon a contention that he clearly advised Mr Malloy of his PTSD at his initial interview.

192 I am here only considering, initially, whether Mr Smith, in effect, mentioned PTSD as an umbrella term, or label, for his symptoms at the interview. The associated questions (considered below) are, if Mr Smith did advise Mr Molloy of his PTSD, then how much of his symptoms were, in fact, relayed to Mr Molloy? And, relatedly and more importantly, did Mr Smith, in any case, have an obligation fully to expose his symptoms, commensurate with his employment duties, to seek the protection of the EO Act?

193 We should perhaps first recall that at the time of his interview, Mr Smith was continuing to receive not insignificant amounts of both psychiatric and psychological treatment and examination (including medication prescribed by a psychiatrist) for his PTSD. I will say something in a moment, once again, about the clinicians' frame of reference about the seriousness of Mr Smith's condition at around the time of the job interview. With the benefit of what is now known, it seems somewhat of a small miracle that Mr Smith could last as long as he did working with Mr Crisafio before some unmanaged event (or the culmination of a series of unmanaged events) impacting on or connected with his impairment brought matters, in effect, to a head. Prior to the interview, this seemed to have already occurred, as Dr Ng apparently, and Dr Dale certainly, recorded in relation to Mr Smith's employment history immediately previous to that of working for Mr Crisafio.

195 There is, despite what Mr Smith submitted, no cogent evidence that his impairment (under the label of mentioning his PTSD) was conveyed to any person in the organisation, either at interview or around the time that Mr Smith commenced employment. In fact, all of the evidence from other witnesses (if accepted), and the surrounding circumstances, point the other way.

196 In my view, Mr Smith has incorrectly recalled that he told Mr Molloy at his interview about his PTSD. There are at least six reasons supporting this finding:

1. Dr Dale's recall of events around May 2013 suggests that Mr Smith had already attended his interview when she urged him to disclose his PTSD to his employer (see above).
2. Mr Smith never disclosed in writing to any employer on a job application form that he had PTSD. He did disclose in writing, for some employers (for example, DVG and BMW), but not to Mr Crisafio, that he had had a previous workers compensation claim. This modus operandi points to probable non-disclosure at that time, unless Mr Smith is to be believed that he always orally informed his employer. Even so, as this case demonstrates, oral disclosure (where employers usually require written disclosure) is problematic in itself.
3. We know that Mr Crisafio was not present at the interview and the interview seems to have been conducted, on Mr Smith's case, fairly hurriedly, with Mr Smith starting work there immediately. He was hired 'on the spot'. Both Mr Molloy's and Mr Smith's accounts suggest that the interview was, if standard, perhaps superficial, quickly moving to negotiating terms and conditions to be approved by Mr Crisafio. Processing of Mr Smith's paperwork (such as following up the curious answer to his workers compensation claim question) appears to have been perfunctory. It seems that the dealership was reasonably anxious to obtain the services of Mr Smith who may have had some previous reputation as a good salesperson and certainly presented well and with suitable experience (on paper). Thus, it is unlikely that there was a lot of time to discuss Mr Smith's PTSD at the interview.
4. The motivation not to disclose PTSD is obvious, and supports an inference that Mr Smith would be cautious when, and what, he might disclose to Mr Crisafio (and others). Hence his disinclination to commit it to writing. Understandably, an employee might feel motivated to downplay or conceal such information by reason of economic pressure to obtain and keep employment, especially where, as here, the employee had failed his last probationary periods because of his PTSD. As it turns out, Mr Crisafio was sympathetic to his predicament. Although Mr Smith denied that he faced such pressures, he told his psychologist, in effect, that he did have a financial motivation to secure employment, presumably without knowledge by the employer of his PTSD getting in the way. Dr Dale had to urge Mr Smith to tell Mr Molloy about his PTSD. She was right to do so. Further, an employee might also feel that the situation could be kept under control and would be manageable, and would therefore be of no concern to the principal employer. (That seems to have been Mr Smith's view, a view that, as events turned out, was wholly misplaced.)
5. In any case, I prefer the evidence on these matters of Mr Crisafio and Mr Molloy to Mr Smith's evidence. For the reasons set out in detail above, Mr Smith's evidence on critical events, such as this, is too unreliable to be given much weight. Further, what Mr Crisafio and Mr Molloy have said is generally corroborative of each other and is consistent with the results flowing from the other factors listed above, throwing doubt on Mr Smith's version of events. And, Mr Molloy's frank acknowledgement that Mr Smith had indeed at some point 'mentioned that he had previously been involved in a workplace accident' and the respondent's position that PTSD was (eventually) disclosed to him, after the written warning, adds verisimilitude to their accounts of the timing of the disclosure.
6. Finally, if Mr Crisafio and Mr Molloy were in collusion to hide the details of Mr Smith's disclosure of his PTSD, then one may have expected them, perhaps, to resist a claim by denying knowledge of Mr Smith's PTSD until much later in the piece. Instead, it would make sense that Mr Smith opened up (partly) to them about his impairment when he was on his final warning and risking dismissal. Mr Crisafio's and Mr Molloy's statements are, on balance, more plausible accounts of the events than Mr Smith's account.

197 Accordingly, Mr Smith's case fails on proving this pivotal aspect of his claim. That is, if Mr Smith was treated less favourably, then as the employer had no knowledge of his impairment until around 25 October 2013, a discrimination claim, as presently framed around knowledge from late May 2013, cannot be sustained.

In any event, was full disclosure required and was it ever given?

198 However, even if Mr Smith did disclose at his interview his PTSD (in the sense that that he more or less mentioned it), a secondary critical question would arise as to how much of his PTSD he did, in fact, disclose (or ought to have disclosed) to Mr Molloy.

199 At this point, I should say that for Mr Smith's impairment claim to succeed based upon a case of disclosure at his initial interview (and it would need to occur at around that point, as he came to work suffering severe PTSD from the very commencement of his employment), he would, in any case, need to show that anything material to the impairment that might bear upon the employment relationship was adequately disclosed to the employer at that time (at least in the case where the employer did not have practical access to this information, or the information was only known to Mr Smith).

200 It would seem that the mere mention of PTSD as a generic label of impairment (filtered by Mr Smith) would, in the circumstances of what is now known in this case, be wholly inadequate, for example, to convey to any senior manager the precise nature of the impairment so that, for example, the employee could be 'managed' appropriately to avoid the extreme sensitivities manifested by Mr Smith's impairment, assuming, for the sake of argument, that this was the scope of the employer's duty. This case demonstrates why full disclosure to an employer, if not necessary, is at least desirable.

201 Although we need not finally determine this issue here, I am inclined to the view that because, in effect, 'knowledge' of an impairment by the alleged discriminator is critical to a successful EO Act claim (see above), these broader matters of relevant treatment, diagnosis or effect of the impairment (at least an impairment of the nature we are presently concerned with) must be transparently relayed to the critical decision­maker (that is, the alleged discriminator). Here, a formal process was in place to collect such information. If alleged discrimination flows from this knowledge, then questions of justification or exemption or reasonable accommodation might arise. Thus, generally speaking, a person suffering an impairment has, in my view, a reciprocal duty to disclose that information to an employer.

202 Here, I would not, for the reasons that follow, accept any contention by Mr Smith, if that is to be implied or put in the alternative by him, that at the point of commencing employment, he satisfactorily, in any event, met this wider obligation of adequate disclosure of treatment, diagnosis or effect of the impairment.

203 I should reiterate the view, already expressed above, that it is clear that, on Mr Smith's own case, he re-entered work (that is, commenced employment with Mr Crisafio) with, according to the clinicians, severe (and not just some) symptoms of PTSD, symptoms which, at the point of re­entry to work, were never fully relayed to any person in Mr Crisafio's organisation. As I have said, mentioning PTSD (assuming that occurred) is not the same thing as adequate disclosure. As we have seen, Mr Smith's symptoms could be (and were) triggered off by the most ordinary of events in a vehicle showroom, including talking to customers. His immediate previous employment had led to him leaving that work because of these symptoms of PTSD. There is, on Mr Smith's own case, no evidence, for example, that such special sensitivity (including previous work history related thereto) was ever relayed to any person in the organisation, certainly not initially.

204 Assuming, however, that Mr Smith's case were to be put upon the basis of adequate disclosure, at the risk of some repetition of the reasons set out above (on the PTSD 'label' or 'mention' issue), Mr Smith cannot succeed in making out such a case. Apart from my preference for the recollections of other witnesses, and the acknowledgement of the hurried nature of the interview process, the following two further reasons may be advanced suggesting why Mr Smith has failed on this score.

205 First, despite Mr Smith's views, full and adequate disclosure of his condition (beyond just relaying a 'label' or making a mention of PTSD) might, rightly or wrongly, have led to even further 'prejudice' as regards his employment prospects with any employer. If not prejudice, then at least very special inquiry. Indeed, as I have suggested, full disclosure might have led to proper and justified questions concerning Mr Smith's ability to handle the inherent requirements of his job (such as being around vehicles with open bonnets and dealing with customers). Legitimate questions concerning Mr Smith's and others' health and safety in the workplace might also have arisen. (For present purposes, we need not discuss the hypothetical impact, if any, of the EO Act - see s 66Q - on such issues.) In short, there would be a powerful disincentive for Mr Smith to disclose fully the breadth of his PTSD to his employer, even if he had mentioned PTSD in a loose, generic sense.

206 Secondly, another of Dr Dale's text messages ('You need to open up to your boss ... I can [come] [and] talk to him if you want me to', sent on 26 October 2013) strongly suggests that Mr Smith had not communicated matters sufficiently to his employer at any point in the employment relationship.

207 Accordingly, Mr Smith's case fails on proving these aspects, imputed or otherwise, of his claim. That is, if Mr Smith was treated less favourably, then as the employer had no adequate knowledge of the true state of his impairment, a discrimination claim framed around adequate knowledge (which, as I have said, is a necessary part of a successful claim) from late May 2013 cannot be sustained on his claim, imputed or otherwise.

208 I turn to consider the third alternative (that is, the sequence of events after the written warning and, on the respondent's case, disclosure at that point by Mr Smith of his PTSD).

Effect of advice of PTSD after the warning letter was given

209 If it is to be assumed that Mr Smith's case then proceeds upon the alternative basis that after this point (that is, after a warning was issued and some disclosure took place) adverse acts or omissions on the employer's part could be referenced to this admitted knowledge of his PTSD, then two familiar issues, and one new issue, arise, namely:

1. Was there ever full disclosure to Mr Molloy?
2. How much of that disclosure reached Mr Crisafio?
3. How does Mr Smith deal with the fact that up until the disclosure (that is, shortly after the warning was given) there had been a deteriorating employment relationship, a matter which, consistent with the findings already made above, is not logically influenced by knowledge of his PTSD?

210 The respondent's case acknowledges that Mr Smith told Mr Molloy of his PTSD around the day after the warning letter was discussed with Mr Smith. The scope of Mr Smith's disclosure was explained by Mr Molloy in these terms:

[Mr Smith] told me [for the first time, after the written warning was discussed] that he was suffering from PTSD and he was seeing doctors to treat him. I told [Mr Smith] that he was always welcome to take a breather and that if he got under pressure and felt worked up, he could walk down the road for a while. All [Mr Smith] had to do was give me a nod and I would know he needed a break. I told [Mr Smith] that if he needed an extended break, to let me know.

211 If the evidence of Mr Molloy is generally accepted (as I have), then a narrow scope of what was revealed by Mr Smith about his PTSD, in comparison to his real (or 'severe') symptoms, is suggested by the use of the phrases 'take a breather' and take 'a break'. This is consistent with what I have already suggested: that no evidence has been presented by Mr Smith showing (here, after the warning letter was issued) that he fully and transparently disclosed to his employer the true extent of his PTSD.

212 Further, there is no evidence that, whatever his general knowledge of the disorder, Mr Molloy ever suffered himself from PTSD or, more importantly, that he was aware, as I have already indicated, of the true extent to which Mr Smith suffered symptoms of PTSD, as it individually affected, or might affect, Mr Smith.

213 Shortly thereafter, for the first time, Mr Crisafio learnt of Mr Smith's PTSD. We may recall that Mr Crisafio said that when Mr Molloy told him about Mr Smith's PTSD, he said that 'was not an issue as long as [Mr Smith] wanted to continue to work and kept reaching his quota [of sales]'. This position was based upon the extent of the knowledge available to Mr Crisafio, filtered as it was by Mr Molloy (based upon the primary filtering of the condition by Mr Smith).

214 On this assumed alternative basis for the claim, the deteriorating employment relationship before knowledge of Mr Smith's condition reached Mr Crisafio, strongly supports the respondent's case that whatever was happening to Mr Smith, as regards the treatment of him by his employer, it was not 'on the ground[s]' of his PTSD. I will return to this matter below.

215 Mr Smith's case fails on proving these aspects, imputed or otherwise, of his claim. That is, if Mr Smith was treated less favourably, then as the employer had no adequate knowledge of the true extent of his impairment after 25 October 2013, there was no discrimination on the ground of his impairment.

Conclusions on the main allegation of discrimination

216 I am prepared to accept that, to some extent, Mr Smith held a subjective and genuine, if objectively erroneous, belief that everybody important at his then work had a fairly clear idea of what he was going through and how vulnerable or sensitive he was. Certainly, his back problems, which sometimes seemed severe, were well known.

217 During the entire period that Mr Smith worked for Mr Crisafio he was still experiencing pain from his injuries from 2011. (He was thus supplied with a work vehicle suitable to accommodate his continuing back problems (T:22; 16.09.15)). It seems that his back problems were generally known in the dealership because Mr Smith continuously drew attention to them. However, as I have said earlier in these reasons, Mr Smith's EO Act claim here is not brought upon this basis.

218 Although during the hearing Mr Smith would accuse Mr Molloy of lying about the circumstances of his dismissal, Mr Smith spoke generally in favourable terms of him in connection with their working relationship ('[I] didn't have a problem with Mr Molloy'). It would seem that Mr Molloy empathised with Mr Smith when he acknowledged that he himself had had previously some mental health problems. Mr Molloy's well­meaning empathy for the continuing effects of Mr Smith's 2011 accident might have contributed to the erroneous beliefs that Mr Smith held.

219 Nevertheless, knowledge of his back problems, whether arising out of a previous workplace injury or not, is not the same as knowledge of Mr Smith's potentially severe or, indeed, any of his PTSD symptoms. It is always possible, of course, that Mr Smith has conflated the two events in his mind, or similarly conflated discussions, if any, with Mr Molloy as to the management of his ongoing workers compensation obligations (since Mr Molloy concedes that that 2011 accident at work was mentioned to him at some point).

220 From Mr Molloy's point of view, early on, he would have most probably heard something generalised about Mr Smith suffering occasional problems arising out of a previous accident. I accept that Mr Smith, at some point, might have mentioned the need to attend medical appointments, but that may well have been in the context of managing his workers compensation claim which, as I have noted, was apparently revealed to Mr Molloy sometime after the interview. However, in light of the findings made above on the central aspects of Mr Smith's case, it is unnecessary to make any specific findings or comment further on these matters.

221 Objectively viewed, the situation as regards the employment relationship was manifestly different.

222 Looking first at matters from the point of view of Mr Crisafio (who is the alleged discriminator) we can start, unsurprisingly, with his concern for the viability of his business (he described it as a 'family' business) expressed mainly through the amount of new and used vehicle sales. Mr Smith was, despite his impairment, very good at contributing to that goal (for a time) and was initially rewarded with promotion. (As an aside, if Mr Smith had mentioned his PTSD at his interview, such a promotion might be thought of as perhaps inconsistent with discriminatory treatment. However, this is a suggestion that need not be pursued, in light of the way the case was argued and the findings made above.)

223 I infer that as long as sales targets were being met (or exceeded, as Mr Smith had done), Mr Smith would be given some flexibility, particularly by Mr Molloy, in his working arrangements. Indeed, Mr Crisafio was not worried about the eventual disclosure to him of Mr Smith's PTSD (after a written warning was given to Mr Smith) provided that Mr Smith continued to sell a sufficient number of vehicles. He went further in cross­examination by suggesting that he would have tried to accommodate Mr Smith's position had Mr Smith appropriately communicated matters to him.

224 Mr Crisafio would, however, come to see Mr Smith as a somewhat prickly, perhaps hypersensitive, negative and ultimately disloyal employee, given over to arguing and complaining (and with a declining work attitude, and with work ­ that is, the 'leads' ­ being allocated accordingly). There is an abundance of material showing how increasingly unhappy and complaining Mr Smith was becoming at work. He would also be 'upset' from time to time. There is evidence in his text messages to Dr Dale of occasional outbursts of anger at work. Dr Ng made a similar observation. Consequently, and unsurprisingly, Mr Smith was warned about his general demeanour which flowed from, as the employer saw it, Mr Smith's negative attitude, not his impairment (which was, in any case, only partly disclosed after 26 October 2013). In short, such events concerning Mr Smith were occurring well before he made his partial disclosure of his PTSD.

225 Mr Smith regarded the letter of warning, amongst other things, as a 'sham' indicating that he thought that he was being set up. Although Mr Smith appeared to deny it, he obviously felt that he was on the outer, and was being 'punished' for his attitude, a matter that he would, for the purposes of the present claim, characterise as, in effect, punishment for him suffering from the symptoms of PTSD.

226 I do not consider the letter to be a sham. Mr Smith could have responded positively to it, including by fully disclosing the state of his mental health and then getting on with his job of selling vehicles (which he had demonstrated that he had the potential to do). Dr Dale was always happy to talk to Mr Crisafio, if necessary.

227 The perception that Mr Smith was, irrespective of his PTSD, unhappy, distant and under­performing at work was, in the circumstances, reasonably open to the employer. Likewise, Mr Smith's activities on his final day (leaving work suddenly, not returning urgent calls and, without express permission, taking data away from the office, whether or not he had completely cleared his desk), as they appeared to Mr Crisafio, could reasonably be construed by an employer as prima facie justification for summary dismissal. Further, Mr Smith's failure to return the dealership's vehicle as soon as practicable was deplorable and probably severed any hope of a reconciliation. Whether the circumstances of Mr Smith's dismissal (and his other treatment in connection therewith) were actually justified under his contract or any industrial law or instrument, are not to the point in these proceedings.

228 This was, in effect, the culmination of a long 'process' that had started some weeks before the warning letter was issued. For a long part of this 'process' of declining work attitude and performance, the employer had, on the findings that I have made, no knowledge whatever of PTSD. Thereafter, it is clear on the findings that I have made, that the respondent had no knowledge of the full extent of Mr Smith's symptoms.

229 Further, and critically, Mr Smith has failed to demonstrate that any of the misfortune that befell him while he was working for Mr Crisafio arose out of any act or omission by the respondent 'on the ground of' his impairment.

230 In any event, even if the respondent 'knew' about (or sufficiently knew about) the impairment at any material point, there is no evidence to suggest that there was any relevantly 'unequal' treatment of Mr Smith. Both Mr Crisafio and Mr Molloy were firm in their view that any employee in Mr Smith's position (that is, any employee who behaved like Mr Smith, and with the capacities of Mr Smith) would be treated the same as him, starting with the giving of a written warning based upon attitude and behaviour as an employee.

231 Mr Smith failed to disclose to his employer his true circumstances relating to a quite serious impairment at the point of the commencement of his employment. Arguably, having been asked, in writing, about such matters, he had a duty to so disclose. When he did disclose to his employer something about his impairment it was, in effect, 'too little, too late' and, in the circumstances, insufficient to attract the protection of the EO Act.

232 An employer is not to be exposed to the serious consequences of a finding of unlawful discrimination by reason of an employee 'drip feeding' details of their impairment to that employer and then ascribing every unfortunate event that thereafter occurred to them to acts and omissions, wilful or not, engaged in by the employer which had the alleged effect of increasing their suffering from that impairment. To permit Mr Smith's claim to succeed in such circumstances might well be an example of a trend that Brennan J cautioned against in Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 at 372:

Anti-discrimination legislation cannot carry a traffic it was not designed to bear. The beneficial operation of such legislation is prejudiced by invoking its assistance to achieve remedies which can be achieved only by straining the legislative language.

233 Mr Smith's principal claim of discrimination should be dismissed.

234 I have already set out above the background to the apparent revival of this second complaint, one of victimisation.

235 The complaint is based principally upon the hearsay recollections of Mr Smith's son, Robert, from conversations with Mr Pasic and another gentleman in the vehicle sales industry. These conversations are not particularly well recorded in Mr Robert Smith's witness statement, originally dated 26 August 2014. Vague and unstructured might be another way to describe Mr Robert Smith's recollections of these conversations from 2013 and 2014.

236 The November 2013 conversation alleged that Mr Crisafio had asked Mr Pasic's 'associates to go around ... and do whatever they need to do to get his car back and sort [Mr Nigel Smith] out'. Both Mr Pasic and Mr Crisafio deny that any such conversations or discussions took place.

237 Details of the more relevant 2014 conversation are set out above.

238 As to the second conversation, Mr Pasic and Mr Smith appear to be talking about the same encounter but, as I noted above, Mr Pasic says that it was in September or October 2014, which is after the date of Mr Robert Smith's statement (August 2014) recalling the same.

239 Whenever the date, Mr Robert Smith did not present well as a witness. He appeared to be exceedingly nervous and hesitant, and was unclear about his recollection of some events. For example, in his witness statement, he gave evidence of a face­to­face meeting with Mr Pasic on 16 November 2013. It was put to him that it may have been a telephone call (as Mr Pasic had deposed) which he denied before saying shortly thereafter 'I was the one that was on the other end of that phone call'. He then said with some certainty that he was 'sure' that it was a face-to-face meeting before immediately conceding that it was indeed a telephone call. He admitted that his recollection might be 'a bit hazy'. He alleged that Mr Pasic had been 'aggressive' in his phone call, yet there is no mention of this in his statement.

240 Mr Robert Smith was, however, more certain in his recall of the second conversation in 2014. This was, apparently, a more pleasant affair.

241 Mr Pasic's recollection of the two events was much more straightforward and clearer. His recollection suggests that the November 2013 conversation was about the return of the company car (something that he had offered to do for Mr Crisafio, whom he knew quite well), and the 2014 exchange was a brief and casual conversation (not 10 to 15 minutes, as Mr Robert Smith recalled) when Mr Robert Smith was visiting with his fiancé and their young child at Mr Pasic's dealership (where Mr Nigel Smith was also then employed). Mr Pasic did concede in cross­examination that, in effect, he could not recall everything about that day, and it was 'possible' that Mr Crisafio had called him, coincidentally, during this meeting, a matter alleged by Mr Robert Smith and not referred to in Mr Pasic's original statement.

242 I record this exchange between Mr Nigel Smith and the witness:

And at no point did ­ and at no point then did you start asking questions [of Mr Robert Smith] about what had gone off between [Mr Crisafio] and me?---[Mr Pasic:] Why would I? If I wanted to ask a question I could have asked you. You were working at the dealership at the time, were you not?

243 On balance, I am inclined to prefer Mr Pasic's broad recollection of both events as more coherent and probable. Moreover, Mr Robert Smith's relationship as the son of the applicant, his consequential knowledge of the intimate details of the dismissal, and his 'inside' knowledge of the industry (as he was also a vehicle salesperson) might have all tended to colour his perception of events.

244 The second witness, Mr Paul Walsh, alleged in a draft affidavit/statutory declaration dated 29 January 2015 that 'on several occasions over the last several months' Mr Crisafio had 'made several comments regarding [Mr Smith's] unfair dismissal [claim] against him.' Mr Crisafio was alleged to have called current or prospective employers to advise them not to employ Mr Smith 'or to get rid of [him]'. Mr Walsh did not actually see or hear Mr Crisafio telephone these employers.

245 Mr Walsh had worked for Mr Crisafio from October 2013 to November 2014, when he was made redundant. In relation to Mr Walsh, Mr Crisafio gave evidence in cross­examination as follows:

[Mr Walsh] did go to Fair Work Australia, which we're about to get an answer shortly ... We've done everything right. So [there's] nothing to fear there ... Paul [Walsh] got very, very angry. He was ringing up all my staff members. He was trying to get statements, witness statements. He was trying to compile the biggest case I've ever seen in my life ... to no avail, because it was a genuine redundancy, and in that, he obviously knew that you [Mr Smith] were coming at me, and he wanted to, obviously, hurt me by ... joining sides with you ... [a]nd that's when he has turned around and said, 'I've had conversations with Joe. Joe has, a couple of times ­' and I use[d] to speak to Paul in confidence ... being [one of] the manager[s], you know, and he would tell me his problems, and obviously, I might have just got, you know, one of [Mr Kennedy's invoices for legal services] and gone, 'Oh my [G]od [and] I would have vented frustrations, said, 'Bloody hell. You know, I should ring [these] bloody dealers and tell them not to employ Nigel. Look what he's doing to me,' but then I would always say, my last breath, you know, 'Well, he's probably better off in a job, because if he's working, he will leave me alone,' and that's ... as far as it went, Nigel, you know.

(T:213­214; 17.09.15)

246 In relation to Mr Crisafio's recollection of discussions between him and Mr Walsh concerning Mr Smith, I record this exchange between Mr Kennedy and Mr Walsh (emphasis added):

[W]hat [Mr Crisafio] said to you was he was frustrated about having to be in these proceedings and that he should ring other dealers and tell them about Mr Smith, didn't he?---[Mr Walsh:] Well, I don't know exact[ly] ­ I can't, you know, recollect. It's probably, you know, the best part of ­ it's 15/18 months ago, so I can't really recollect exactly.

But that's what he could have said, he could have said that?---That's correct.

(T:192; 15.09.15)

247 Moreover, Mr Walsh admitted that because he had been made redundant by Mr Crisafio he was, at the time that he made his statement, a 'disgruntled' employee. Consequently, he had, as Mr Crisafio indicated, commenced proceedings in the Fair Work Commission in relation to his dismissal. The result of those proceeding was published on 17 September 2015, two days after Mr Walsh gave his evidence in this Tribunal.

248 Commissioner Cloghan in the Fair Work Commission concluded that Mr Walsh's application should be dismissed, as his dismissal was indeed 'a case of genuine redundancy': Walsh v Palace Nominees Pty Ltd [2015] FWC 6434 at [65].

249 To the extent that either Mr Robert Smith's or Mr Walsh's evidence has been accepted in this Tribunal (frankly, neither witness has been of much assistance in support of Mr Smith's claim), it is wholly insufficient to sustain a serious allegation of unlawful victimisation under the EO Act. In particular, it fails to demonstrate a causal link between Mr Smith's EO Act claim, any detriment that he suffered (if any), and that Mr Crisafio relevantly intended the same.

250 There is no other evidence of any substance supporting Mr Smith's second victimisation complaint; that claim must also be dismissed.

251 Mr Smith has been unsuccessful in his claims. In this jurisdiction, a loss of one's anti­discrimination claims is not, in itself, a ground for an adverse costs order against the applicant. However, other matters of conduct, purpose and motivation might attract a costs order against any participant in a proceeding in the Tribunal. Before turning to Mr Smith's sometimes troubling conduct and his claims in this proceeding, I consider the relevant principles in relation to costs.

252 In Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317, the Tribunal said, at [45] and [47], emphasis added:

Section 87(1) of the [State Administrative Tribunal Act 2004 (WA), (SAT Act)] provides that unless otherwise specified in the SAT Act, the enabling Act [that is. The EO Act], or an order of the Tribunal under s 87, the parties bear their own costs in a proceeding before the Tribunal. There is no provision as to costs in the [EO Act].

We are of the view that the Tribunal should not generally make an award for costs in proceedings bought under the [EO Act] unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings; has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order for costs where a matter has been brought vexatiously or for improper purposes ...

253 In Ninan v Valuer General [2012] WASAT 248, the Tribunal said, at [78]:

The relevant principles concerning costs are set out in the Guide to Proceedings in the WA State Administrative Tribunal at pages 190 ­ 193 and 208 ­ 212. It is there suggested that there will only be an award of costs in 'special circumstances' (page 190). Thus, successful costs applications in the Tribunal have been described as a 'rare bird' indeed: Tran and Town of Vincent [2009] WASAT 123 at [29]. However, costs might be awarded against a party in circumstances illustrated in this passage taken from Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73], endorsed as of general application by the learned authors (at page 191):

'... If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful. ...'

254 In Ninan v Valuer General [2012] WASAT 248 (S) (Ninan), the Tribunal said, at [19] and [20]:

The aim of costs, where it is permissible to grant costs, is not to punish an unsuccessful party, but rather to indemnify or compensate ­ and usually then only as partial compensation ­ the other party in respect of certain expenses to which they have been unnecessarily put.

The need for restraint in the amounts awarded for costs in the Tribunal is discussed, for example, in Tran and Town of Vincent [2009] WASAT 123 (S), at [40] ­ [42] ...

255 Nevertheless, in Ninan, the Tribunal awarded costs of $50,000 against an unsuccessful litigant who had put the respondent to significant expense in responding to the applicants' serious but 'completely unfounded' claims. The applicants in Ninan had engaged in conduct which was substantially an abuse of process. They had been repeatedly warned of the consequences of advancing baseless claims. Moreover, the Tribunal had ruled, as had been foreshadowed to them, that the applicants' claims were, in any case, 'outside of the Tribunal's jurisdiction'.

256 In Summerville and Department of Education and Training [2006] WASAT 368, the former President of this Tribunal (Barker J) awarded costs against the applicant in an EO Act matter. His Honour said, at [50] ­ [54] (emphasis added):

At all times, [Ms S] insisted that her complaints against [Mr F] should be maintained in the Tribunal, notwithstanding the attempts by [Mr F] not to be joined in the first instance and later on, before the hearing, to be removed as a party. [Ms S] actively opposed the strike out application before the hearing.

In the event, [Mr F] has successfully defended the complaint against him. His success is against the background I have just described. Even though [Ms S] was self-represented in the proceedings, she failed to give any proper attention to the true basis of her claim against [Mr F]. She simply desired to maintain in the Tribunal all the allegations she originally made to the Equal Opportunity Commission, regardless of their status under the EO Act as a ground for discrimination.

In my view, parties who require their complaints to be transferred to the Tribunal by the Commissioner for Equal Opportunity in circumstances where the Commissioner has already found those allegations to be without substance, should not be entitled to maintain proceedings that do not have any reasonable chance of success without being at risk of a costs order being made against them.

In this case, I consider that, whilst the starting out position in the Tribunal is that it is a 'no cost' jurisdiction, the circumstances of this particular case, where [Ms S] maintained the proceedings against [Mr F] in circumstances in which, taken at their highest, there was no cause for complaint against [Mr F] under the EO Act, should result in her contributing towards the costs incurred by Mr F.

As far as the exercise of that discretion of costs is concerned, [Mr F] has claimed reimbursement of his legal expenses in excess of $23,000. While [Mr F] needed to participate in the hearing over five days, not all of the hearing was relevant to [Ms S]'s claims made against him. I think in all the circumstances of the case, an award of costs in the sum of $7,500 ­ about a third of the claimed costs ­ is fair and reasonable.

257 In this case, the costs incurred by the respondent in defending himself from Mr Smith's far-reaching allegations will have been considerable.

258 I have commented above on Mr Smith's sometimes disruptive and unreasonable behaviour in the hearing and in the giving of his evidence. I also think that his occasional inappropriate conduct has probably unnecessarily lengthened the time that this matter has spent in the Tribunal. I have already noted above the suggestion that on at least one previous occasion, Mr Smith apparently failed to comply with some important procedural orders of the Tribunal.

259 However, and perhaps more seriously, Mr Smith made some extremely damaging personal allegations against Mr Crisafio. Mr Smith sought to paint Mr Crisafio as an unreasonable, extremely quick to anger, perhaps even a violent man, one who was prepared to cause threats to issue to Mr Smith and his family. There is nothing in the material that Mr Smith has produced here to sustain such serious allegations, to the extent that they were ever relevant to the main issues to be decided.

260 Mr Crisafio operates a business which clearly trades in (if not trades on) his personal name and reputation (that is, as a franchisee, making him the Dealer Principal). The dealership employs or engages several staff (including one or more members of his family). These staff are personally supervised by Mr Crisafio and are, in a sense, ultimately dependent upon him for their continued employment. The profitability of the business is dependent upon a sufficient stream of vehicle sales and associated services in a highly competitive trade built upon reputation.

261 I regret that these proceedings were, in effect, the instrument that permitted Mr Smith to make such serious allegations, allegations which were not only unfounded (in that no material of any substance was ever produced to verify them) but were far removed from Mr Smith's original core complaints of discrimination on the basis of his PTSD, an impairment that he never adequately disclosed in the first place.

262 For these reasons, I will reserve for 14 days the possibility of an adverse costs order (if any) against Mr Smith.

263 For the reasons given above, the Tribunal makes the following orders:

1. The applications in proceedings EOA 3/2015, Smith v Palace Nominees Pty Ltd (trading as Joe Crisafio KIA) and EOA 24/2014, Smith v Palace Nominees Pty Ltd, (trading as Joe Crisafio KIA) are, subject to any determination on the question of costs, dismissed.
2. The respondent may, within 14 days, or such further time as the Tribunal allows, file and serve short written submissions on costs including, if costs are claimed, identifying in short form the amount or amounts or proportion of costs sought to be recovered (and the basis therefor).
3. Thereafter, by no later than a further 14 days, or such further time as the Tribunal allows, the applicant may file and serve short submissions in reply.

I certify that this and the preceding [263] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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