Walsh v Amobee ANZ Pty Ltd

Legal Framework

1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
2. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
3. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
4. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]: "In considering an application for leave, the Tribunal obviously has to have in mind that a refusal of such leave will finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights ...A plaintiff refused leave will be deprived of the right to pursue a discrimination complaint. That situation is ordinarily one in which a cautious approach is adopted to a refusal of leave".
5. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
6. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.
7. In assessing the available evidence the Tribunal is to take the applicant's case at its highest and then determine whether the applicant could possibly succeed in the complaint: Sadiq v Commissioner for Police [2021] NSWCATAD 19 at [6]; Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].

Disability discrimination

1. Section 4 of the Act defines disability to mean: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
2. 'Associate of a person' is defined in section 4 as any person with whom the person associates, whether socially or in business or commerce or otherwise and any person who is wholly or mainly dependent on, or a member of the household of, the person.
3. Section 49D(2)(c) of the AD Act makes it unlawful for an employer to discriminate against an employee on the ground of disability by dismissing the employee.
4. Section 49B of the Act explains what constitutes discrimination on the ground of disability: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. … … (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

Consideration

1. By the time the application for leave came to hearing it was not disputed by the Respondent that the Applicant's partner, Ms A, suffered from a disability within the meaning of the Act. Nor was it disputed that the Applicant was an "associate" of Ms A within the meaning of the Act. Nevertheless, these matters were established by the evidence of the Applicant, who provided the Tribunal with an affidavit dated 3 May 2022, annexing a medical certificate from Ms A's treating psychologist confirming her diagnosis of complex post-traumatic stress disorder requiring fortnightly appointments since 2017 for trauma informed psychological intervention. The Applicant's affidavit of 29 April 2022 also established his personal relationship with Ms A.
2. To determine whether, as the Respondent contends, the complaint is lacking in substance, it is necessary to first identify the elements the Applicant must establish if leave is granted for the complaint to proceed.
3. The Applicant has cast his complaint as indirect discrimination, and must therefore establish that: 1. The Respondent imposed a requirement or condition; 2. He was unable to comply with that requirement of condition; 3. A substantially higher proportion of persons who do not have that disability or who do not have a relative or associate who has that disability comply or are able to comply; 4. The requirement is not reasonable having regard to the circumstances of the case.
4. The expression 'requirement or condition' is not defined in the Act. The expression is one that should not be given a narrow or technical construction and the words are to be interpreted liberally so as to further the objects of the Act: State of New South Wales v Amery (2006) 230 CLR 174.
5. The Respondent provided the Tribunal with an affidavit of Scott Hughes dated 13 May 2022, which annexed a copy of the Applicant's employment contract with the Respondent, a document demonstrating that Ms A reported to the Applicant from 1 July 2015 to 6 November 2020, and a copy of the Respondent's Global Code of Conduct, which contained the Conflict Policy.
6. The Applicant provided the Tribunal with evidence in the form of his affidavit dated 29 April 2022. As discussed above, for the purposes of determining whether or not leave should be granted in these proceedings, the Tribunal accepts the Applicant's evidence and takes it at its highest in order to determine whether it is fair and just for the complaint to be allowed to proceed.
7. The Conflict Policy required all staff members to 'avoid all situations that will or have a potential, to give rise to a Conflict of Interest' and states that: 'if you have a relative or a person with whom you have a close personal relationship who works for Amobee or a Singtel Group company, either of you at work should not exercise influence over the other, supervise or report to the other, provide input on the other's performance, career or other business matter'] … '[y]ou must declare as and when there is awareness of such situations of conflict or have a potential of the same arising, and inform your HR Representative and Department Head.''
8. I accept that the Conflict Policy plainly required the Applicant to disclose his relationship with Ms A. The Applicant admits to not doing so.
9. The requirement or condition imposed on the Applicant was the requirement to comply with the Respondent's Conflict Policy and formally disclose his relationship with Ms A. I accept that compliance with the Conflict Policy was a requirement or condition imposed on all employees of the Respondent, and that the Applicant, as an employee of the Respondent, was required to comply with the policies of the Respondent. I agree that a person, not in the position of the Applicant, would be able to comply with the requirement or condition and formally disclose their relationship in accordance with the Conflict Policy.
10. The Applicant's evidence was that that he decided to withhold information and not formally advise the Respondent of the relationship on the basis of Ms A's prior dealings with the Respondent and her mental health. He said: (a) Over several years, I witnessed first-hand how the systematic conduct of the Respondent's Human Resources department had greatly exacerbated Ms A's disabilities and had a detrimental impact on her health and wellbeing as detailed in paragraphs 12 to 29 above. (b) Disclosure of our relationship would have required me to defy Ms A's express request that I withhold that information having regard to her concerns about further harassment from the Human Resources department and her personal view about the safest and most appropriate way to manage her mental health. Apart from my concerns regarding Ms A's welfare, it was also clear to me that disclosure of the existence of our relationship in defiance of Ms A's wishes would likely to be quite damaging to the relationship and regarded by Ms A as a breach of trust. (c) It may have resulted in a change to the organisational structure with Ms A being moved out of my business area and exposed to direct supervision and oversight by representatives from a Human Resources department that appeared intent on removing her from the organisation. In this regard, I had no confidence in Human Resources' ability or willingness to manage the disclosure in a fair and impartial way and feared that Ms A might lose her job, which was plainly a legitimate apprehension given Ms Crowley's comment to me that Ms A would not be "walking back through the door" shortly after her second attempted suicide. (d) The broad objectives of the "Conflict of Interest" component of the Global Code of Conduct are intended to safeguard against an employee failing to act in an objective or impartial manner in exercising their discretion. As outlined above, it is my understanding that Mr Natarajan, Mr Wolfrey and Ms Golden were aware of the existence of my relationship with Ms A. That is, if I had conferred an improper benefit on Ms A (which I strenuously deny), those individuals would have been in a position to identify the issue. In this respect, I considered that the objectives of the policy had still been realised even though the procedural requirements had not been complied with. 43 Overall, I feared for her safety and believe that disclosure of the relationship and management of it in accordance with the Respondent's formal policies and procedures would have greatly increased the likelihood that Ms A would engage in further acts of self-harm. In my view, this was an unacceptable risk which I was not prepared to take.
11. I accept the Applicant's evidence that from the commencement of his personal relationship with Ms A, he helped her to devise strategies to mitigate the harassment she experienced at the hands of the Respondent's Human Resources department and to manage the implications of that conduct for her health and wellbeing.
12. The Respondent submitted that there was no basis to support the assertion that the Applicant making a declaration in accordance with the Conflict Policy would necessarily result in any engagement between Ms A and the Respondent's Human Resources team. Nevertheless, considering the Applicant's experience as an employee of the Respondent and as Ms A's partner, I accept the Applicant's evidence that this is likely to have occurred, and that disclosing the existence of his relationship with Ms A in accordance with the Global Code of Conduct would have resulted in representatives from the Human Resources department becoming directly involved in the management of their professional relationship and further scrutiny of Ms A's personal circumstances. I accept the Applicant's evidence that Ms A's disabilities were likely to be exacerbated by being further exposed to representatives from the Respondent's Human Resources department.
13. As discussed in Hurst v Queensland (2006) 151 FCR 562 at [134] the Full Court of the Federal Court, in examining whether the applicant did not or was not able to comply within the meaning of section 6(c) of the Disability Discrimination Act 1992, found that: "…it is sufficient to satisfy that component of s6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespectively or whether that person can cope with the requirement or condition"
14. I accept the Applicant's submission that if an Applicant experiences serious disadvantage or hardship in complying with a requirement, that may also mean that the person is, in a practical sense, unable to comply with the requirement. On the evidence provided by the Applicant, taken at its highest, as an associate of a person with Ms A's disabilities, he was unable to comply with the Conflict Policy because doing so was likely to result in a further deterioration to Ms A's mental health. This occurred in circumstances where other employees, who were not associates of a person with Ms A's mental health issues and disability, would be able to comply with the requirements of the Conflict Policy.
15. The question therefore is whether or not the requirement imposed on all employees, including the Applicant as an associate of a person with Ms A's disability, was reasonable. In determining whether or not a requirement is reasonable, all of the relevant circumstances must be taken into account. The basic proposition was set out in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263 as "the test of reasonableness is less demanding than necessity but more demanding than a test of convenience".
16. The relevant factors when considering the reasonableness of a requirement on condition were summarised by the Tribunal in Wong v Office of the Board of Studies NSW (No 4) [2012] NSWADT 128 at [269], being that the Tribunal must have regard to the nature and extent of the discriminatory effect of the requirement and consider this in the light of: 1. the reasons for the requirement, including any commercial (or practical) considerations; 2. whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis; 3. whether there is a less discriminatory option, which accommodates the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory; and 4. any other relevant circumstances.
17. The Conflict Policy itself, as it applies broadly to all employees of the Respondent, is reasonable. I accept the Respondent's submissions that: 58 The Conflict Policy can be regarded as a 'garden-variety', standard policy with requirements that are plainly reasonable and completely unexceptional. 59 The Respondent submits that it is very standard practice for organisations to have a conflict of interest policy in place. 60 Further, the Conflict Policy is plainly reasonable having regard to its purpose. The Conflict Policy is clearly designed to prevent employees acting inconsistently with the best interests of the employer, or otherwise misconducting themselves. In fact, it is designed to prevent situations such as those which have occurred here, where the Applicant was in a lengthy relationship with a subordinate employee who directly reported to him, and whose remuneration he had a key role in setting/approving. 61 It is reasonable for organisations to implement a policy which requires all staff to disclose potential or actual conflicts of interest, and to declare where an actual or potential conflict of interest may exist. There are obvious important governance reasons for such a policy being in place, including the need to avoid staff acting in conflict with the employer's interests, including where they may be personally motivated to do so. Indeed, all employees have an implied duty of good faith and fidelity which effectively prohibits them from acting inconsistently with the best interests of their employer.
18. However, I disagree with the Respondent's submissions that there is no connection between Ms A's disability and mental health, and the Applicant's failure to comply with the Conflict Policy. As discussed above, the connection between disclosure by the Applicant of the Applicant and Ms A's relationship in accordance with the Conflict Policy, and the likely detrimental impact on Ms A's mental health, was described in detail by the Applicant in his affidavit and is accepted by the Tribunal.
19. The Applicant's evidence demonstrates that the Applicant's failure to comply with the Conflict Policy was provided by the Respondent as a reason to support his termination. According to his evidence, which the Tribunal accepts for the purpose of this leave hearing, he was: …informed that the reasons for the decision included the existence of his personal relationship with Ms [A] and my breach of the Respondent's Global Code of Conduct policy. In this respect, Mr Natarajan indicated that my personal relationship with Ms [A] was a contravention of the Global Code of Conduct because it had not been formally disclosed. However it is my belief that Mr Natarajan, Robert Wolfrey (Senior Vice President South East Asia) and Erica Golden (Senior Vice President of People) were aware of the existence of the relationship.
20. In his complaint to the ADB the Applicant identified further senior executives or managers aware of the Applicant's relationship with Ms A, including Josif Zanich (Managing Director), Krishnan Patel (Director, Amobee Singapore), Ben Searancke (Director) and significantly, Jessica Trumble, the Respondent's Human Resources Manager.
21. In the circumstances, rather than strict compliance with the Conflict Policy in the Respondent's Global Code of Conduct requiring formal disclosure of the relationship, the "less discriminatory option" which would accommodate the needs of the Applicant in circumstances where he is an associate of Ms A, would be to allow some form of informal disclosure or reporting to a business area other than the HR department in satisfaction of its policies. This option was not acceptable to the Respondent. Despite the knowledge or awareness by individual senior executives within the Respondent of the personal relationship, including within the Human Resources Department, the fact that the Applicant failed to provide formal disclosure of his relationship in accordance with the Conflict Policy in the Respondent's Global Code of Conduct was referred to as one of the reasons supporting his termination. This demonstrates to the Tribunal that the Respondent was requiring strict compliance with its policies, and would not accept anything short of the formal disclosure of the Applicant's relationship to the HR Representative and Department Head.
22. In the circumstances, I agree with the Applicant's submission that the requirement was not reasonable. It follows that I disagree with the ADB's conclusions that the Applicant's argument was 'disingenuous' and that the complaint is lacking in substance.

Whether fair and just to grant leave

1. The Respondent submitted that even if the Tribunal were to find the Respondent had unlawfully discriminated against the Applicant, the Applicant had not pointed to any actual loss or damage that he has suffered directly connected with that alleged unlawful discrimination.
2. In his complaint to the ADB, the Applicant sought $100,000 in compensation for the loss and damage suffered as a result of the discriminatory conduct. No further evidence or detail causally connecting any amount of compensation with the alleged discriminatory conduct was provided by the Applicant.
3. Nevertheless, I do not agree with the Respondent's submission that a grant of leave in this matter would result in a hearing that would not have any prospects of an award of compensation or damages to the Applicant. Section 108 of the Act provides for a range of possible remedies available to the Applicant, including financial compensation and otherwise. Once leave is granted, the Applicant will be required to provide his Points of Claim and relevant particulars in the usual course, including the identification of the exact remedies sought and their causal connection to the alleged discriminatory conduct. The Applicant's failure to do so at this stage of proceedings is not a basis for denying leave.
4. On the basis of the evidence before the Tribunal at this early stage of the proceedings, taking the Applicant's evidence at its highest as I am required to do, I have found that there is substance to the Applicant's complaint, despite the ADB's findings to the contrary.
5. The Tribunal is required to critically examine the available material to determine whether there is a real question of law or fact that should be decided in a hearing. There are clearly factual and legal disputes between the parties, and a refusal of leave would deprive the Applicant of having his complaint being thoroughly considered and deprive both parties of having the facts and matters alleged being properly tested.
6. In the circumstances the Tribunal exercises its discretion to grant leave for the Applicant's complaint to proceed.

Orders: 1. Leave is granted pursuant to s 96(1) of the Anti-Discrimination Act 1977 for the Applicant's complaint to proceed.

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: 03 August 2022