Tebb v State of NSW

[2020] NSWCATAD 85

NCAT Administrative and Equal Opportunity|2019-12-02

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2019-12-02

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Background facts

The following is taken from the material filed by Mr Tebb together with the report forwarded to NCAT by the President as required by s 94A of the Act (the President's report).
Mr Tebb has been employed by the respondent for the past thirty years. Throughout the period of the complaints, Mr Tebb worked as a Court Officer, and more particularly was a "Client Service Officer", under the Government Sector Employment Act 2019 (NSW).
On 5 April 2018, Mr Tebb met with his supervisor, Registrar, Mr Daniel Watson, to discuss Mr Watson's concerns about the amount of sick leave taken by Mr Tebb over the previous 12 months. In the 12 months to April 2018, Mr Tebb took a total of 38.4 days sick leave. According to Mr Tebb, he used the bulk of that leave to care for his partner and their baby following a difficult caesarean birth, and his two-year-old son who had various health problems, requiring hospitalisation and specialist treatment. He claimed that he used the balance of that leave on days he was unable to attend work on account of gout and associated mobility problems.
In a sick leave review form prepared following the meeting with Mr Tebb on 5 April 2018, Mr Watson wrote: Summary of Agreed Outcomes Agreed that number of sick leave is unacceptable and that non-attendance at staff meetings and being late to training courses is unacceptable. Final outcomes and dates 1st Stage: To be placed on a Performance Improvement Plan (PIP) regarding attendance (including mandatory medical certificates and start time of 9 am). To commence on 9/7/18 for 3 months, to be reviewed weekly. PIP attached with other documents. … 3rd stage: Escalation step Progression to Final Advisory meeting and Human Resources Branch
On 6 April 2018, 18 April 2018 and 17 May 2018 Mr Tebb met with Mr Watson or his delegate to discuss the Performance Improvement Plan (PIP). After the meeting on 17 May 2018, a representative of the Public Service Association (PSA) who had accompanied Mr Tebb to that meeting, emailed Mr Watson stating that Mr Tebb's "time and attendance, sick leave records … need to be addressed". However, he expressed disagreement with the proposed Performance Improvement Plan, stating that "this document is usually related to the management of general unsatisfactory performance of a role". On 23 May 2018, Mr Watson advised the PSA representative that he had decided to retitle the PIP "Management Plan 1.2". (In these reasons I will refer to that plan and the PIP jointly as "the Plan".)

[5]

Allegation 2

Under the Plan Mr Tebb was required to commence work by 9:00am, and on days when staff meetings were scheduled, by 8.45am. Before the Plan came into effect Mr Tebb had been starting work at 9:30am.
Mr Tebb appears to identify the alleged detriment/ denial of, limitation of access to a benefit of employment as: 1. the respondent's alleged decision to limit his access to the Flexible Working Agreement (the FWA), an agreement between the PSA and the Department of Justice, made pursuant to cl 10 of the Crown Employees (Public Service Conditions of Employment) Review Award 2009 (the Award); 2. the directive that he commence work by 9:00am (8:45am on staff meeting days).
The respondent contends that after the Plan came into effect, the FWA continued to apply to Mr Tebb. It asserts that it is not open to Mr Tebb to seek to re-open this issue because it was determined by the Tribunal in the decision made on 17 September 2019, dismissing Mr Tebb's application for interim orders under s 105 of the Act. In addition, the respondent contends that under the terms of the FWA it was entitled to designate Mr Tebb's start times on the basis of the "operational requirements of the Department and the service delivery contact hours". It follows, submits the respondent, that it is not reasonably arguable that its decision to mandate a 9:00am (8:45am) start time constitutes a detriment, or denial of, limitation of access to a benefit of employment. Mr Tebb disagrees.
For current purposes I will assume but not decide that, as the respondent contends, the FWA continued to apply to Mr Tebb after the plan came into effect, and under that agreement it was entitled to direct Mr Tebb to start work at 9:00am (8:45am). It does not follow, however, that the contention that the designation of a start time amounts to a loss, denial of, limitation of access to a benefit of employment, is not reasonably arguable, given that apparently for some time Mr Tebb had enjoyed the flexibility of a later start time. To amount to a detriment, or a denial of, or a limitation of access to a benefit of employment, it is not necessary to establish that the employer contravened the relevant award or industrial agreement. I am not persuaded that Mr Tebb's contention that the start time directive amounts to a detriment, and/or the denial of, or limitation of access to a benefit of employment, is not reasonably arguable and/or is misconceived.

[11]

Is there an absence of material to support a finding of less favourable treatment?

The respondent contends that there is no material before the Tribunal to support Mr Tebb's claim that he was subjected to "less favourable treatment". The respondent contends that the closest Mr Tebb comes to referring to a "relevant comparator" is the comment in his statement of 2 October 2019 at [15] that "about half of the office were also scheduled for a sick leave review".
Mr Tebb claims that colleagues without carers' responsibilities or gout have "similar or higher sick leave instances" and have not suffered any detriment. In addition, he contends that it is unfair for the respondent to assert that there is no evidence of less favourable treatment in circumstances where material relating to the leave taken by colleagues and any sick leave reviews, is in its possession and it opposes his request for a summons to obtain that material.
In determining whether less favourable treatment is established the Tribunal must: 1. compare the treatment the respondent afforded Mr Tebb (ie. the conduct the subject of Allegations 1, 2 and 3) with the treatment that: 1. the respondent afforded an employee without Mr Tebb's disability/carers' responsibilities, in the same circumstances or circumstances that are not materially differently to Mr Tebb's circumstances (actual employee), or 2. the respondent would have afforded an employee in the same circumstances, or circumstances that are not materially differently to Mr Tebb's circumstances (hypothetical employee), and 1. evaluate, whether the treatment the respondent afforded Mr Tebb was objectively less favourable than the treatment it afforded an actual employee, or which the respondent would probably have afforded a hypothetical employee.
In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 the High Court (Gummow, Hayne and Heydon JJ) stated that in undertaking the comparison required to determine whether less favourable treatment is established, it is necessary to identify the "circumstances attending the treatment given … to the [complainant]" namely, "all of the objective features which surround the actual or intended treatment of the [complainant] by the … 'discriminator'": at [223], [224].
Mr Tebb has not nominated an actual employee with whom the treatment about which he complains can be compared. This is not fatal to his claim, as the respondent appears to suggest, given that, as discussed above, the necessary comparison can be made on the basis of comparing the treatment Mr Tebb was afforded, with the treatment the respondent would probably have afforded a hypothetical employee. As a first step in undertaking that comparison, the objective circumstances surrounding Mr Tebb's treatment must be identified. Self-evidently, those circumstances would include the nature and type of leave taken by Mr Tebb, relevantly 38.4 unsupported/unplanned leave days over a 12 month period. On the available material and without submissions I am unable to determine whether they are the only relevant circumstances that must be taken into account. Unless and until that occurs, I could not be positively satisfied that the contention that Mr Tebb was afforded less favourable treatment is not reasonably arguable.

[14]

Statutory framework

Section 50 of the Act relevantly states: 50 Victimisation (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: … (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. ….
For the allegation of victimisation to be substantiated Mr Tebb must establish on the balance of probabilities, that: 1. the respondent or one of its employees caused him to undergo or experience something; 2. he suffered some consequential detriment; and 3. that he was subjected to that alleged detriment "on the ground" that he did one of the things listed in s 50(1) of the Act: see, Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 at [70] quoting Buchannan J in Penhall-Jones v New South Wales [2007] FCA 925; Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
In the Second Complaint, Mr Tebb wrote that after lodging the First Complaint on 23 April 2018 and advising Mr Watson that he had done so, he was "immediately subject to detrimental treatment [and] his work was subject to extraordinary scrutiny". In the Outline of Complaint, Mr Tebb listed a series of decisions and actions taken by Mr Watson which he contends, individually and cumulatively, amount to a detriment within the meaning of s 50 of the Act. They include: 1. dissuading Mr Tebb's support person from accompanying him to the Plan review meetings; 2. conducting those meetings in a manner which was unfair, unreasonable and amounted to a denial of procedural fairness; 3. requiring him to attend review meetings with little or no notice; 4. subjecting his work to "extraordinary scrutiny"; and 5. further restricting his "access to employment benefits" by, among other things, extending his finishing time to 4:30pm.
The respondent rejects the contention that these acts amount to a detriment, asserting that each was merely a continuation of the arrangements to monitor and implement the Plan that had been put in place by Mr Watson before the First Complaint was lodged. Further, the respondent asserts that there is no material to support the contention that one of the reasons Mr Watson and/or other managers subjected Mr Tebb to the alleged detriments was because he had made a complaint of discrimination.

[16]

Are the complaints misconceived or lacking in substance and, if so, should the power to dismiss them be exercised?

The issue to be determined is whether the power to dismiss one or both complaints, in whole or in part, can and should be exercised. As the authorities have repeatedly instructed, that power must be exercised with caution: Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 at [24]; Margan at [15].
Before addressing this issue, it is necessary to address the respondent's assertion that the Outline of Complaint is deficient in a number of material respects, leaving it in a position where it does not "know the case it must meet". Without intending any disrespect to Mr Tebb, there can be no argument that the Outline of Complaint falls well short of the standard that might be expected of a reasonably competent legal practitioner. Among other things, it conflates facts, contentions and submissions and fails to particularise the material on which he relies to satisfy each of the elements of the relevant statutory tests. While undoubtedly this makes the respondent's task of responding to both complaints difficult, I am unable to agree with the proposition that it is not possible to discern from a fair reading of the President's report, together with the material filed by Mr Tebb, the basis of his claim. Nor am I persuaded that this shortcoming provides a proper basis for exercising the power to dismiss the complaints summarily.
In Margan the Appeal Panel observed that the nature of the subject dismissal application and the stage in proceedings when that application is determined, are relevant to the exercise of the power to dismiss a complaint. The Appeal Panel at [15] distinguished between a dismissal application based on a challenge to the Tribunal's jurisdiction, where, for example, the allegations if proven would not identify conduct proscribed by the Act, and an application, such as the one brought by the respondent, which is in effect a challenge to the sufficiency of evidence. In relation to the former, the Panel commented at [15] that "it will often be appropriate for [the dismissal] application to be made at the earliest opportunity so as to save time and cost". However, with respect to the latter, the Appeal Panel commented that the dismissal application would "most usually be made only after the complainant's case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent's case, as we discussed above".
That Mr Tebb has not pointed to direct evidence to support the elements of causation in both complaints is unremarkable. As has often been observed, it is unusual for there to be direct evidence of discrimination, and the outcome of a case will usually depend on what inferences can be drawn from the primary facts found: Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 at [40], citing Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958. Commenting on this issue in the context of the exercise of the power to summarily dismiss a complaint the Appeal Panel in Margan stated at [10]: Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred. (Emphasis added.)
At this stage of the proceedings, not only is there no direct evidence that one of the reasons the respondent subjected Mr Tebb to the treatment about which he complains was because he had a disability or carers' responsibilities, but Mr Tebb has failed to articulate the basis upon which those inferences can reasonably be drawn from the available material. To establish causation it is not enough that Mr Tebb hold the honest belief that the treatment about which he complains was because he had a disability, carers' responsibility or had complained of discrimination. It follows that, assessed at this stage, the complaints lack substance. Nonetheless, for the following reasons, I have decided not to exercise the power to dismiss the complaints.
First, Mr Tebb seeks, and has yet to be given the opportunity, to question his managers about key facts in issue, including those relating to the elements of causation and less favourable treatment. Apart from the respondent's denial that the offending conduct does not constitute unlawful discrimination or victimisation, the available material does not disclose, except in general terms, the reasons why the respondent's managers took the particular decisions and actions about which Mr Tebb complains. While there may be, as the respondent contends, a plausible and innocent explanation for each decision made and action taken, until that evidence is given and tested this remains speculative. The converse is equally true.
Second, in my view, the interests of justice require that Mr Tebb be given the opportunity of a hearing to make submissions about facts in issue and conclusions to be drawn from the facts found. The NCAT Act requires that a hearing be conducted unless otherwise ordered by the Tribunal: s 50. The Tribunal may only dispense with that requirement if satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged: s 50(3). While s 50 does not operate to prevent the Tribunal from exercising the power to dismiss a complaint at any stage of the proceedings, it nonetheless recognises that some matters cannot adequately be determined "on the papers". In my experience, those matters include where, as here, the law is relatively complex and the applicant is self-represented. Many self-represented parties struggle to put their arguments in writing. My observation is that Mr Tebb falls into this group.
In deciding not to exercise the power to dismiss the complaint, I have taken into account the fact that the decision by Mr Tebb's managers to conduct a sick leave review, when confronted with his history of sick leave, seems reasoned and unremarkable. However, that does not answer the question whether the specific steps they took, for example, issuing the directive about work start times, amounts to less favourable treatment, or whether one of the reasons for that directive was Mr Tebb's disability/carers' responsibilities. Nor does it resolve the question of whether one of the reasons for the conduct the subject of the Second Complaint was because Mr Tebb had complained of discrimination.
Given these factors and taking into account the instruction that the power to dismiss a complaint must be exercised with caution I am not satisfied that at this stage of proceedings it is appropriate to exercise the power to dismiss the complaint. I note that this decision does not prevent the respondent from bringing a further dismissal application after Mr Tebb has had an opportunity to test the claims made by his managers, and his case is closed.
For the reasons discussed above I have decided to dismiss that part of the First Complaint alleging indirect discrimination on the ground of disability and carers' responsibilities. While as a self-represented party Mr Tebb must be granted some indulgence, it does not extend to permitting him to pursue a claim where even on the most generous reading of the available material it is not possible to discern the basis for the claim made.

[17]

Application to amend to the complaints

Mr Tebb requests that the Tribunal exercise the power conferred by s 103 of the Act to extend the temporal scope of each complaint to 25 October 2019. The First Complaint covers the period, 5 April 2018 to 23 April 2018. The Second Complaint covers the period, 14 May 2018 to 7 June 2018. The respondent opposes this application.
Mr Tebb asserts that the alleged discriminatory treatment/victimisation which is the subject of the First and Second Complaints, continued after he returned to work in June 2019. As best as I can make out from Mr Tebb's submissions, the conduct which is the subject of the amendment application includes the "continuation of the discrimination until the PIP expired on 25 June 2019, when normal access to employment benefits under the Flexible Working Agreement resumed" and several further "acts of discrimination" said to have occurred after 25 June 2019.
Applying the principles governing the exercise of the power to amend a complaint set out in McCrystal v Commissioner of Police, NSW Police Force [2018] NSWCATAD 299 at [9]-[13] for the following reasons, I have decided not to grant leave to amend the complaints.
First, if the Tribunal finds the First and/or Second Complaint to be substantiated, it follows that the continuation of that conduct will amount to a contravention of the Act. If that were to occur, it is not immediately apparent how Mr Tebb would be prejudiced if the application to amend the complaint is not granted.
Second, Mr Tebb has failed to particularise the additional matters he seeks to agitate which occurred after June 2018. This makes difficult the task of determining whether and if so to what extent, granting the amendment application will extend the scope of matters to be determined and delay the determination of the Complaints. The Complaints were referred to the Tribunal over nine months ago and have been the subject of several interlocutory applications. Based on my observations of the progress of these proceedings to date, in my view, granting the amendment is likely to materially extend the time it will take to finalise these proceedings. Such an outcome would, in my view, be inconsistent with the guiding principle: to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW).
Third, a decision not to exercise the power to amend the Complaints does not deprive Mr Tebb of his right under the Act to pursue the matters which are the subject of the amendment application. The Act gives him the right to lodge a complaint about those matters with the President of the Anti-Discrimination Board.

Parties

Applicant/Plaintiff:

Tebb

Respondent/Defendant:

State of NSW

Legislation Cited (3)

Government Sector Employment Act 2019(NSW)

Anti-Discrimination Act 1977(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Cases Cited (16)

The statutory framework: Tribunal's power to dismiss a complaint

Section 102 of the Act provides that the Tribunal may, at any stage in proceedings, dismiss the whole or any part of a complaint on a ground on which the President may decline the whole or any part of a complaint under ss 92(1)(a)(i) and/or 92(1)(a)(ii). These provisions state: 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, , or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
In Langley v Niland & Anor (1981) 2 NSWLR 104, in relation to a slightly different but analogous statutory context, Hunt J (at 107) commented that the words "misconceived or lacking in substance" referred to the "insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint" rather than to whether the complaint was one within the provisions of the Act at all. See also Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 (Margan) at [9]. In these proceedings I will take the term "lacking in substance" to mean a complaint which is "not reasonably arguable" (BDK v Department of Education and Communities [2015] NSWCATAP 129 at [63]; Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]) and the term, "misconceived" to mean a "misunderstanding of legal principle" (Alchin v Rail Corporation NSW [2012] NSWADT 142 at [26]).
Consistent with the approach taken by the Civil and Administrative Tribunal of NSW (NCAT) and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal (ADT), in deciding whether to exercise the power to summarily dismiss the complaints made by Mr Tebb, I have taken the facts on which Mr Tebb relies at their highest: Kitoko v Sydney Local Health District [2018] NSWCATAP 38 at [41]; Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]-[26].

(2003) 217 CLR 92

(2002) 115 IR 91

(1981) 2 NSWLR 104

(1992) 26 NSWLR 666

(1992) 30 NSWLR 1