Soward v Strop Pty Ltd t/as All Hills Fencing

The Evidence

1. Mr Strop relied on his statement signed on 18 December 2023. The respondent relied on the Statement of Ms Lee Norris ("Ms Norris") dated 23 February 2024 and the attachments to it. Ms Norris was the a manager of the respondent and has held that role since 1995.
2. Mr Strop commenced working for Strop on 13 August 2021. He was employed as a full time permanent employee in the role of a truck driver. His usual hours of work were Monday to Friday. He was regularly required to work on Saturdays.
3. On 5 July 2022 Mr Strop injured his back at work when getting out of the truck. The injury was a lumbar back strain injury. Mr Soward continued to work for a few hours. The next day he consulted his doctor and was certified unfit for work for a few days. Mr Soward commenced a graduated return to work a few days later.
4. On his return to work on 8 July 2024, he walked into a conversation with Jeff Norris, the co-owner of Strop and Paul Curmi, his manager who were saying that they were having trouble getting a truck driver for the Saturday on 9 July 2024. Mr Soward stated that he could work on the Saturday and was rostered for the day.
5. On 22 July 2023, Mr Soward's General Practitioner Dr Khoo contacted him by telephone and said to him that he had been contacted by a person from Strop and had been asked to submit his back injury claim through Medicare and not as a Workers Compensation claim. Dr Khoo advised him to submit a Workers Compensation claim which he did. Mr Strop provided his Workers Compensation Certificate to Ms Tuckwell, the office administrator. Mr Soward stated that Ms Tuckwell said to him words to the effect of: You were told not to put the claim through.
6. Since 9 July 2024, Mr Soward was not rostered to work on a Saturday. His claim is that he has been denied the work because of his injury.
7. Ms Norris gave evidence of the Saturday work available during the complaint period between paragraphs 21 to 33 of her statement. Ms Norris was not required for cross examination. Her evidence was that during the Complaint Period, there was a substantial slowdown of overtime and weekend work as on or around 20 April 2022 a large contract came to an end. This was a fencing contract with WestConnex. Ms Norris also stated that much of the banked up work due to Covid was cleared.
8. Ms Norris' evidence was that during the Complaint Period, four employees worked with the applicant in the Deliveries Department. A copy of the time sheets was attached to the statement. The time sheets show that there was limited work on Saturdays. Ms Norris stated that Mr Soward was offered work on Saturdays, but it was not truck driving work.
9. The parties have filed other evidence about their relationship that is outside the scope of the applicant's claim. The evidence broadly consisted of Mr Strop alleging that he was bullied by numerous persons employed by Strop and Ms Norris denying the bullying behaviour. Attached to Ms Norris' statement are statements by Mr Jeff Norris, Mr Cumi and Mr Tomruk prepared for the purposes of a Workers Compensation claim submitted by the applicant. We give the conflicting evidence referred to above no weight as it is irrelevant to the applicant's claim in this Tribunal. This is consistent with the respondent's submission that the evidence should not be admitted on the basis of lack of relevance.

Consideration

1. The onus is on Mr Soward to make out his case on the balance of probabilities that the respondent engaged in unlawful discrimination as alleged; Sharma v Legal Aid (Qld) [2002] FCAFC 196; 115 IR 91 at [40].
2. The following matters are not in dispute between the parties: 1. Mr Soward is an employee of Strop and is able to make a complaint within the meaning of s49D(2) of the Act. 2. On 5 July 2022, Mr Soward acquired an injury to his back, lumbar back strain, which is a "disability" within the meaning of ss 4 and 49A of the Act.
3. The Tribunal has to determine whether the respondent treated the applicant less favourably than in the same circumstances or in circumstances which are not materially different the respondent treats or would treat a person who does not have that disability on the ground of his disability.
4. The less favourable treatment was alleged to be a failure to provide work on Saturdays as a truck driver. This treatment can be described as "in the terms or conditions of employment which the employer affords the employee" as it was a benefit which he could have accepted within the meaning of s49D(2)(a) of the Act; Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 55 cited with approval in New South Wales v Amery (2006) 230 CLR 174 at 196 [67]-[68].
5. The key factual dispute between the parties was whether there was truck driving work available on Saturdays for the applicant to perform during the Complaint Period, that is from 9 July 2023 to 21 January 2023.
6. Mr Soward disputed Ms Norris' evidence in his submissions to the Tribunal. In his complaint to the Board, Mr Soward stated that "other colleagues were receiving the Saturday shifts instead…"
7. Mr Soward's submission that other colleagues were receiving the Saturday shifts instead of him is contrary to the contemporaneous evidence led by Ms Norris in the form of time sheets that showed that there was very little amount of work on Saturdays and most of the work on Saturdays was not truck driving work.
8. Mr Soward did not point to any primary facts or circumstantial evidence from which an inference may be made to contradict the evidence in the time sheets or Ms Norris' evidence about the respondent's workload during the Complaint Period. Mr Soward did not challenge any aspect of the time sheets. It is insufficient to simply allege that there has been discrimination even if Mr Soward genuinely believes that he has been discriminated against on the ground of disability.
9. The Tribunal accepts Ms Norris' unchallenged evidence that Mr Soward was not offered any Saturday truck driving work because there was no availability of such work. Mr Soward's claim that he was denied any Saturday truck driving work on the ground of his disability is not supported by any evidence other than his assertion of this being the case. There is evidence that Mr Soward was provided with truck driving work on Saturday 9 July 2022 after he acquired the disability. Following this Saturday, he was informed by the respondent that there was no truck driving work to perform on Saturdays.
10. There is no evidence before the Tribunal that another employee in the same or similar circumstances to Mr Soward was provided with truck driving work on Saturdays during the complaint period.
11. Based on the material before the Tribunal, Mr Soward has failed to make out his claim that he was denied truck driving work on Saturdays on the ground of the disability or for reasons that included the disability.
12. The Tribunal makes the following order: 1. The application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 May 2024