Zoltaszek v Downer EDI Engineering Pty Ltd

1. Mr Zoltaszek filed an application and points of claim and relies on affidavits sworn by him in these proceedings. Annexed to one of these affidavits was a compact disc containing Word files and what appear to be recorded conversations. Insofar as the compact disc contained Word files no objection was taken by Downer. In pre-hearing written submissions Downer foreshadowed that issue would be taken with the admission into evidence of that part of the compact disc that contained recordings of two conversations. At the hearing Mr Zoltaszek told the court that he did not wish to rely on that part of the compact disc. Hence I have not had regard to those recordings.
2. The respondent filed a response and points of defence and relies on affidavits of Christos Theodorou affirmed on 14 April 2010 and George Vlahakis affirmed on 16 April 2010. A number of documents were tendered by the parties. Issues in relation to credit are discussed where relevant below.
3. As the applicant, Mr Zoltaszek bears the onus of proof on the balance of probabilities of establishing the alleged discrimination on the ground of disability (see s.140 of the Evidence Act 1995 (Cth), Ferrus v Qantas Airways (2006) 155 IR 88; [2006] FCA 812 and the discussion of the onus of proof in Vassallo v Jetswan Pty Ltd & Anor [2010] FMCA 708 at [20]). I have taken into account the matters refer to in s.140(2) of the Evidence Act in deciding whether I am satisfied that the case has been proved on the balance of probabilities, having regard to the remarks of Branson J in Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 in relation to discrimination cases.
4. Mr Zoltaszek, who is self-represented, requested and had the assistance of a Polish/English interpreter during the hearing, although for the most part he chose not to use the interpreter.

1. The Disability Discrimination Act renders discrimination on the ground of disability unlawful in the context of work and other areas. In this case what is alleged is discrimination in work. All references to and extracts from the Act are to the Act as it stood prior to the 2009 amendments. At the relevant time disability was defined in s.4 of the Act as follows:
   • disability, in relation to a person, means:
     • (a) total or partial loss of the person's bodily or mental functions; or
     • (b) total or partial loss of a part of the body; or
     • (c) the presence in the body of organisms causing disease or illness; or
     • (d) the presence in the body of organisms capable of causing disease or illness; or
     • (e) the malfunction, malformation or disfigurement of a part of the person's body; or
     • (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
     • (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
   • and includes a disability that:
     • (h) presently exists; or
     • (i) previously existed but no longer exists; or
     • (j) may exist in the future; or
     • (k) is imputed to a person.
2. In his points of claim Mr Zoltaszek relied on s.15(2)(b) and (d) of the Act. As the Act stood at the relevant time subsections (1) and (2) of s.15 of the Act were as follows:
   • (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person's associates:
     • (a) in the arrangements made for the purpose of determining who should be offered employment; or
     • (b) in determining who should be offered employment; or
     • (c) in the terms or conditions on which employment is offered.
   • (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:
     • (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.
3. Mr Zoltaszek claimed that Downer treated him less favourably because of his disability than it treated a person without his disability in the same or similar circumstances. Direct discrimination was defined in s.5 of the Act as follows:
   • (1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
   • (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
4. In the alternative Mr Zoltaszek contended that contrary to s.15 of the Act Downer indirectly discriminated against him within the meaning of s.6 of the Act because the requirement or condition that he attend installation jobs which involved some heavy lifting was a requirement or condition that he could not comply with because of his tendonitis and, subsequently, the injury to his left elbow. He submitted that it was not reasonable to require him to do installation jobs when there were plenty of other jobs that he could do that were not allocated to him. Section 6 of the Act was as follows:
   • For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
     • (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
     • (b) which is not reasonable having regard to the circumstances of the case; and
     • (c) with which the aggrieved person does not or is not able to comply.
5. Mr Zoltaszek argued that if the court did not accept that he was an employee, he was a contract worker within the meaning of s.17 of the Act and was directly or indirectly discriminated against on the same bases as those relied on under s.15 of the Act.
6. A contract worker is defined in s.4 of the Act as "a person who does work for another person under a contract between the employer of the first-mentioned person and that other person". Section 17 of the Act was as follows:
   • (1) It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker's disability or a disability of any of the contract worker's associates:
     • (a) in the terms or conditions on which the principal allows the contract worker to work; or
     • (b) by not allowing the contract worker to work or continue to work; or
     • (c) by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or
     • (d) by subjecting the contract worker to any other detriment.
   • (2) Paragraph (1)(b) does not render it unlawful for a principal to discriminate against a contract worker on the ground of the contract worker's disability, if taking into account the contract worker's past training, qualifications and experience relevant to working as a contract worker and, if the person is already working for the principal as a contract worker, the contract worker's performance as a contract worker, and all other relevant factors that it is reasonable to take into account, the person because of the contract worker's disability:
     • (a) would be unable to carry out the inherent requirements of a contract worker; or
     • (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the principal.
7. Mr Zoltaszek submitted that installation jobs were not an inherent requirement of his employment or contract work, as he contracted to do many other jobs apart from installation jobs.
8. In addition, in his points of claim Mr Zoltaszek alleged harassment under s.35 of the Act in being offered works requiring heavy lifting and experiencing blocked access to the Downer internet site containing work allocations. Section 35 was, relevantly, as follows:
   • (1) It is unlawful for a person to harass another person who:
     • (a) is an employee of that person; and
     • (b) has a disability;
     • in relation to the disability.
   • ...
   • (4) It is unlawful for a person to harass another person who:
     • (a) is a commission agent or contract worker of that person; and
     • (b) has a disability;
     • in relation to the disability.

1. An initial issue that arises in these proceedings is whether Mr Zoltaszek has established that he had a disability for the purposes of the Act. He contended that his injuries came within paragraph (e) of the definition of disability as "the malfunction, malformation or disfigurement of a part of the person's body".
2. The precise nature and extent of the claimed disability asserted by Mr Zoltaszek in these proceedings is not entirely clear. Mr Zoltaszek asserted that he had three disabilities. He relied on claimed back pain said to have arisen in 2000, tendonitis as a result of a right elbow injury which occurred in December 2006 and injury to his left elbow said to have been occasioned at work on 9 May 2007. He also claimed that his back pain had been aggravated due to heavy lifting on 9 May 2007.
3. The evidence relied on by Mr Zoltaszek in support of his claim that he had a disability at the relevant time is limited. He claimed he had suffered back pain since 2000 (before he performed any work for Downer). He provided evidence to the court of booking appointments with a Dr Y Kai Lee in 2006, which he said were in relation to his back pain, but no medical report or evidence from Dr Lee. There is no evidence before the court of any medical report relating to Mr Zoltaszek's claimed back pain or any underlying condition from the time prior to or during the time he performed work for Downer.
4. The only evidence before the court as to the nature or extent of any disability relating to a back injury or pain consists of a reference to "back pain" on "29/06/2002" and "02/12/2006" in a table entitled "Past History" recorded in an unsigned copy of a referral to Dr Lee from Fairfield Station Medical Centre (which does not bear the name of a medical practitioner) dated 9 December 2006 in relation to Mr Zoltaszek's "right forearm pain" (discussed below) and a report from Parramatta Diagnostic Imaging dated 12 October 2007 (that is, after the time in which Mr Zoltaszek performed work for Downer) of lumbosacral spine X-rays and a CT examination.
5. The October 2007 x-ray of Mr Zoltaszek's lumbosacral spine is said to reveal certain conditions, but the report does not explain the impact of what is described or when it commenced. The report stated that there was "mild mid lumbar scoliosis" and that:
   • There are apparently 6 lumbar vertebrae, L6 being transitional in type with partial sacralization. Its left transverse process has expanded to form a false joint with the adjacent sacral ala and there is degenerative sclerosis at its margins. The lumbosacral (L6/S1) disc is thinned which is presumably developmental.
   • There is moderate degenerative thinning of the L2/3 disc space with endplate lipping and sclerosis. I note that there is an unfused accessory centre of ossification at the right transverse process of L1, a developmental variant.
6. The October 2007 CT examination described the L2/3 disc as showing:
   • ...circumferential bulging and also a small left posterolateral herniation which lies in close contact with the emerging nerve root without displacing it.
7. Other disks were described as appearing "normal", with "nerve roots emerg[ing] normally" but with "early osteoarthritic changes in the right L4/5 and L5/6 facets" and the "rest of the facet joints appear[ing] normal". This report does not address the impact of what is observed, in relation to the function of Mr Zoltaszek's back or any relationship between the matters observed in October 2007 and the back pain reported by Mr Zoltaszek to his general practitioner in 2002 and 2006.
8. In relation to Mr Zoltaszek's claimed December 2006 injury to his right elbow, the 9 December 2006 referral to Dr Lee in relation to "right forearm pain" also includes in Mr Zoltaszek's past history "pin (sic) in forearm (Right)" on 2 December 2006. An ultrasound report dated 9 December 2006 addressed to a Dr Knapik (who, I accept, was the doctor who referred Mr Zoltaszek to Dr Lee) states in relation to Mr Zoltaszek's right elbow:
   • There is a 1.6 x 0.5 x 0.3cm hypoechoic change at the common extensor tendon, adjacent to the lateral epicondyle, suggestive of a partial thickness tear or moderate tendonitis. No other significant abnormality is noted.
9. Again, this report does not describe the impact of what was observed. A form on the letter head of "Everbest Prosthetics - Orthotics & Surgical Footwear" described as a "requisition for service" dated 12 December 2006 for a "epicondylitis clasp" for what is described as Mr Zoltaszek's lateral epicondylitis right elbow injury is also in evidence together with a tax invoice/statement dated 15 December 2006 for an elbow brace from Everbest Prosthetics.
10. Also before the court is a "certificate of incapacity for work" issued by Dr Knapik on 2 May 2007, stating that Mr Zoltaszek was unfit to work from 30 April 2007 to 4 May 2007. However what appears to be a two word diagnosis on that certificate is illegible and was not explained in other evidence (except that Mr Zoltaszek stated that the certificate stated his "incapacity for work"). In his affidavit of 2 March 2010 Mr Zoltaszek claimed that he informed George Vlahakis of Downer regarding his incapacity to work on 2 May 2007 and "I explained him reason of it". An incapacity to work for a week is not of itself evidence of a disability. There is no affidavit evidence or medical report from Dr Knapik or Dr Lee before the court.
11. A report on an ultrasound examination of Mr Zoltaszek's right elbow in "the region of the lateral humeral epicondyle" dated 12 October 2007 (after the time in question) stated:
    • ... there is thickening of the proximal attachment of the common extensor digitorum tendon with hypoechoic change consistent with tendonitis (tennis elbow). There is no ganglion cyst or other focal lesion.
12. This is the main injury said to constitute or to have given rise to a disability. Again, however, there is no medical evidence before the court as to the impact of this injury at any relevant time or of any medical evidence (other than the December 2006 ultrasound report) having been provided to Downer in relation to the impact of this condition. While Mr Zoltaszek also claimed he provided Downer with a medical certificate, on the evidence before the court it appears that the only such certificate is the certificate of incapacity for work for a week in April to May 2007.
13. A report in relation to Mr Zoltaszek's "ultrasound examination of the left elbow" dated 10 May 2007 is as follows:
    • The history of recent pain in the vicinity of the lateral humeral epicondyle after heavy lifting is noted. At the attachment of the common extensor digitorum tendon there is an ill defined 12 x 5mm area of fibrillar disturbance with hypoechoic change consistent with a small partial tear rather than "tennis elbow". More distally the tendon appears normal. The rest of the tendons around the elbow are also normal in appearance.
14. This is the only medical evidence before the court in relation to the claimed injury to Mr Zoltaszek's left elbow said by him to have been occasioned at work on 9 May 2007. The October 2007 report is limited to Mr Zoltaszek's back and right elbow.
15. In Qantas Airways Limited v Gama French and Jacobson JJ referred to the need to identify the disability said to be the reason for discrimination at the relevant time. Mr Zoltaszek asserted that his claimed back and arm or elbow injuries constituted disabilities which were the grounds for various kinds of alleged discrimination by Downer.
16. In Stevenson v Murdoch Community Services Inc [2010] FCA 648 at [87] Gordon J stated that "the alleged disability must be identified with precision". Her Honour was not satisfied that the applicant in that case had demonstrated that a thyroid condition could be described as a disability in circumstances where limited evidence had been adduced as to its existence and no evidence adduced as to how it manifested itself or how the condition affected the applicant during the period in question.
17. In Purvis v State of New South Wales (Department of Education and Training) and Another (2003) 217 CLR 92; [2003] HCA 62 the High Court considered the concept of disability under the Act as it stood at the relevant time. One of the issues before the High Court in Purvis was whether there was a distinction between a disability and the conduct that resulted from, or was caused by that disability (see Gummow, Hayne and Heydon JJ at [191] and [194]). McHugh and Kirby JJ (albeit in dissent) suggested (at [45] - [46]) that the "remedial nature of the Act requir[ed] that it be given a broad and beneficial construction". Their Honours pointed out (at [70]) that paragraph (e) of the definition in s.4 (which refers to "the malfunction, malformation or disfigurement of a part of the person's body") focused on "functional ability, rather than underlying cause" and referred to dictionary definitions of "malfunction" as "a failure to function in a normal or satisfactory manner" or a "failure to function properly". There is no evidence as to the impact of the claimed injuries on the functioning of the parts of Mr Zoltaszek's body in issue. Mr Zoltaszek has not established how or the extent to which any or all of the claimed conditions affected his functional ability in any respect during the relevant time.
18. However the respondent's submissions proceeded on the basis that the conditions in question were capable of constituting a disability or disabilities, but contended that on the evidence before the court Mr Zoltaszek had not proved that he had a disability that continued from December 2006 to May 2007 and that any injury he sustained on 9 May 2007 was not a disability that he had during the course of his engagement as a subcontractor or that could be a basis for any discrimination in work as Mr Zoltaszek (through Impowest) did not perform any work for Downer after 9 May 2007.
19. I also note that Gummow, Hayne and Heydon JJ stated in Purvis at [210] - [212] that "to debate the meaning and effect of the definition divorced from the provisions in which it is to operate is to invite serious error". Their Honours suggested that the construction of the definition "must proceed not only from a consideration of the grammatical structure" of the paragraphs in the definition of disability in issue "but also from a consideration of how the definition of disability is engaged in the other, operative, provisions of the Act" ( at [212]).
20. Consistent with the approach taken in Purvis and in the respondent's submissions (and the fact that under the definition a disability need not be a permanent or ongoing condition), I have considered Mr Zoltaszek's claims on the assumption that the conditions complained of are capable of constituting or giving rise to a disability.
21. It is the case that there is evidence of mild scoliosis and what may be described as changes to Mr Zoltaszek's back (in October 2007), changes in his right elbow (in December 2006 and October 2007) and changes in his left elbow (in May 2007). However, even if such changes are capable of constituting or giving rise to a disability, despite the absence of any evidence as to the impact of such matters, it has not been established that Mr Zoltaszek had (or was imputed to have) a disability prior to December 2006 or throughout the whole of the period December 2006 to May 2007. While right elbow changes were observed in December 2006 and October 2007 this evidence of itself does not establish an ongoing condition throughout the period in question. The medical evidence about Mr Zoltaszek's back postdates the period in issue and does not establish that the matters observed in October 2007 constituted a disability at any time during which Mr Zoltaszek performed work for Downer. On Mr Zoltaszek's evidence, the left elbow change observed on 10 May 2007 occurred as a result of an injury on 9 May 2007, the last day on which he performed work for Downer. It has not been established that Mr Zoltaszek had a disability occasioned by any injury to his left arm or elbow prior to 9 May 2007.
22. As discussed below, a difficulty that faces Mr Zoltaszek, whichever aspect of the Act is in issue, is the lack of evidence (such as a detailed medical report) as to the seriousness of the conditions of which he complains and their impact on his functional ability and hence on his ability to perform work. Mr Zoltaszek's submissions proceeded on the basis of an assumption that the injuries he suffered constituted disabilities. He did not give Downer or adduce in these proceedings any expert evidence as to how the claimed conditions manifested themselves (beyond that referred to above) or how they affected him at any relevant time or placed restrictions on the type of work he could undertake, beyond his assertion that he was discriminated against by being given jobs requiring substantial physical effort.

1. In order to consider which provisions of the Act are in issue, it is necessary to determine whether or not Mr Zoltaszek was an employee of Downer. He claimed that he was such an employee, notwithstanding the Subcontractor Agreement entered into by Downer with Impowest on 26 October 2004 for the provision of services by Impowest.
2. Mr Zoltaszek contended that his activity was "entirely controlled" by Downer and that from the beginning of his engagement he was always "treated as [a] person" in documents in relation to work issued by Downer and that Impowest was "not seriously treated as [a] company". He claimed that his working hours, times of appointments with customers and holiday periods were all controlled by Downer, that he had to wear clothing bearing the logo "Downer/Foxtel" and that Downer "ascribed work for [him], which... belonged to another company", Downer Universal Communication Group. Mr Zoltaszek also claimed that he worked only for Downer during the period 26 October 2004 until 8 May 2007 and that Downer "supplied me/us with equipment and some tools".
3. In addition, he claimed that it was relevant that Downer collected "highly personal details" from him. His evidence in this respect consisted of a copy of a blank form headed Downer Engineering and described as a Subcontractor Emergency Information Form which contained spaces for personal details including medical information and contacts.
4. Mr Zoltaszek also appeared to rely on what he considered to be improperly executed documents in support of his contention that he was an employee of Downer. He claimed that a partial copy of a document he claimed purported to be a contract between himself and Downer was not properly executed and that another document provided to him on 31 August 2006 was only signed by him (although the copy he annexed to his affidavit of 2 March 2010 was in fact a blank document).
5. Counsel for the respondent submitted that, consistent with the approach taken in Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16; [1986] HCA 1 and Hollis v Vabu Pty Limited (2001) 207 CLR 21; [2001] HCA 44, on the evidence before the court, including the contractual arrangements, it was clear that at all material times Mr Zoltaszek was an employee of Impowest and not of Downer and that Impowest was an independent contractor providing the services of Mr Zoltaszek to Downer as a contract worker. On this basis it was contended that the court had no jurisdiction to deal with the applicant's claim pursuant to s.15 of the Act. It was conceded however that on the basis that Mr Zoltaszek was a contract worker it would be necessary to have regard to s.17 of the Act.
6. Stevens v Brodribb and Hollis v Vabu addressed the distinction between employees and independent contractors in the context of considering vicarious liability for tortious acts of a person said to be an employee. Relevantly, in Stevens v Brodribb the High Court considered the meaning of the concept of "control", the degree and nature of control exercised over the worker being a factor relevant to whether there was an employer-employee relationship. Also relevant are factors such as the employee's power of selection of his or her work, payment of wages or other remuneration and the putative employer's right to suspend or dismiss the worker (as discussed in Short v J & W Henderson Ltd [1946] SC (HL) 24, 33 - 34 and see McHugh J in Hollis v Vabu at [68]).
7. In Stevens v Brodribb Mason J made the point (at [19 ] - [20]) that over time:
   • _... the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, "so far as there is scope for it", even if it be "only in incidental or collateral matters" (_Zuijs v. Wirth Brothers Pty Ltd, at p 571).
   • Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered.
8. This principle was referred to with approval by Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in Hollis v Vabu at [44].
9. Thus it is relevant to have regard to the totality of the relationship between the parties, including the contractual arrangements, to determine whether an employment relationship existed. I have borne in mind that "the proper classification of a contractual relationship must be determined by the rights and obligations which the contract creates, and not by the label the parties put on it" (TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681 at 699 (referred to with approval in Hollis v Vabu at [58] by Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).
10. First, insofar as Mr Zoltaszek took issue with the execution of what he appeared to claim (in his affidavit of 2 March 2010) was a "purport[ed]" contract between himself and Downer, the document attached to that affidavit is a document described as an agreement made on 26 October 2004 between Downer Connect Pty Ltd (the predecessor to Downer) and Impowest Pty Ltd, not between Downer and Mr Zoltaszek. It is the case that in the attestation provision the part that states "signed for Impowest P/L" has not been signed by Mr Zoltaszek as the duly authorised representative of Impowest, but rather by Scott Daly (who is apparently a Downer employee) in the presence of Mr Zoltaszek. Similarly Mr Zoltaszek has incorrectly signed "for" Downer in the presence of Mr Daly. In other words the signatures for each party are in the place provided for the other party.
11. In any event, this document (a copy of which is also annexed to the affidavit of Mr Vlahakis and explained in his evidence) is not the primary agreement. Rather, it is an agreement to issue recipient created tax invoices for the purposes of goods and services tax legislation (the RCTI Agreement). Such agreement is an annexure (Annexure D) to the primary contract, which I accept is the document Mr Vlahakis described as a Foxtel Subcontract Agreement between Downer Connect Pty Ltd and Impowest Pty Ltd. A copy of this subcontract is annexed to Mr Vlahakis' affidavit. That contract, dated 26 October 2004, is described as a Formal Instrument of Agreement for Foxtel Satellite Installation and Maintenance. The subcontractor is described as Impowest. That contract was signed for and on behalf of Impowest by Mr Zoltaszek and for and on behalf of Downer by Mr Daly.
12. The fact that the signatures on the RCTI Agreement, one of the agreements entered into as part of the Subcontract Agreement, are in the wrong place is not of significance in relation to the issue of whether Mr Zoltaszek was an employee of Downer.
13. Further, insofar as Mr Zoltaszek might be taken to assert that a different contract was entered into in August 2006, while he claimed such a document was signed by him, on his own evidence it was not signed for the respondent. Moreover, the copy of what was said to be this document annexed to his affidavit of 2 March 2010 is not signed at all. It appears to be associated with a letter to technicians from the National Manager of Subscription TV at Downer dated 17 August 2006 announcing an increase in the Foxtel subcontractor rates. There is no reference to any such agreement in Mr Vlahakis' affidavit and he was not cross-examined on his evidence that the relevant agreement was the 2004 Subcontractor Agreement between Downer and Impowest.
14. I am not satisfied on the evidence before the Court that Mr Zoltaszek personally entered into any agreement with Downer in place of the 2004 agreement between Downer and Impowest.
15. The Foxtel Subcontractor Agreement between Downer and Impowest recited that Downer, the contractor, had entered into an agreement for a project with Foxtel and wished to engage the subcontractor (Impowest) to perform work under the subcontract in relation to the project. It also recited that Impowest represented to Downer that it had the requisite skill, experience, ability and available resources to perform the works. A number of documents were attached which were taken to be the subcontract.
16. The parties agreed that the subcontractor (Impowest) should perform works described in an annexure "as directed by the Contractor in an effective, efficient, careful, skilful and safe manner at the times required by the Contractor within the working hours and working days stated in Clause 4".
17. While cl.4 refers to working hours, having regard to the contract as a whole and contrary to Mr Zoltaszek's contention, this contract did not set his working hours as such. Rather it provided that unless otherwise directed or agreed, the hours for the provision of services by Impowest under the subcontract were Monday to Saturday excluding Public Holidays and "Appointments will be from 7:30 AM to 5 PM". There is no evidence that technicians such as Mr Zoltaszek were required to be working on or available for Downer-allocated work orders for the whole of the times specified.
18. The Subcontractor Agreement also contained an express term that unless it was otherwise agreed in writing Impowest was to "provide everything necessary (labour, plant, equipment, vehicle and other things), to perform the Works as and where required by" Downer (cl.2). Insofar as any plant and equipment and other items were provided by Downer, Impowest was responsible for care, maintenance and repair of such plant and equipment so that it could be used in an efficient, effective and safe manner. It was also responsible for the replacement or payment of the value of any such plant and equipment damaged or lost (cl.3).
19. The services in question are described in an annexure entitled "Satellite Installation and Maintenance: Scope of Works" which refers to the technician and does require the technician to conform to certain requirements (including displaying supplied Foxtel decals on any vehicle and Foxtel livery, being "clean, uniformed and carrying and displaying identification").
20. Under the Scope of Works, Downer agreed to sell certain specified Foxtel material (such as satellite dishes and set-top units) "and some consumable materials to the technician at market competitive rates" specified in another document (except for set-top units and smartcards which were free issue). However the technician was "expected to provide any additionally required equipment to complete the Scope of Work" (other than specialised tools which may be provided by Downer). Another document provided for short-term loan of tools from Downer. The evidence is that Mr Zoltaszek provided his own van. Downer did not meet running costs for that vehicle.
21. In addition, Impowest was required to ensure that all plant and equipment in its possession was registered and insured against loss or damage and Impowest was required to effect and maintain public liability insurance (cl.7). There is evidence before the court of public liability insurance and workers' compensation insurance policies maintained by Impowest in relation to death or injury to persons employed by it.
22. Counsel for the respondent drew attention to the fact that cl.5 of the conditions in the Subcontractor's Agreement, headed "Subcontractor's employees" stated that:
    • Personnel required to perform the Works shall at all times remain employees of the Subcontractor [Impowest]

In other words, the contract specified that Impowest was to provide labour and that such personnel would be employees of Impowest. It was also under an obligation to ensure that each such employee was "experienced, competent and fit to perform the work ...required", held "appropriate licences and certificates", was "paid in accordance with the payment conditions, and receive[d] the working conditions, applicable to the customer premises". It is the case that such persons were to attend a contractor safety induction course and Impowest was required to provide Downer with a list of all employees employed by it which "must remain current at all times", with Downer to "be informed immediately once an employee cease[d] to work for" Impowest. However Impowest could change the technicians it provided as long as those technicians met the general requirements and it notified Downer of that change.

1. Mr Zoltaszek confirmed in cross-examination that while he was the only person who performed the work for Impowest, there was no requirement that he be the only person provided under the contract between Downer and Impowest.
2. There was no provision for or practice of payments being made by Downer to Mr Zoltaszek. Clause 11 of the Subcontractor's Agreement dealt with payments and claims. It provided that Downer would pay the subcontractor (Impowest) "the amount(s) derived by multiplying the Activity Codes necessary to perform the Works by the relevant Rates" stated in an annexure to the contract. Subcontractors (and Mr Zoltaszek) were not paid an hourly rate. Downer's liability was calculated by Downer issuing an electronic statement of all intended payments to the subcontractor every fortnight for all Foxtel work undertaken in the previous fortnight. The subcontractor was to compare this with its record of work. Provision was made for resolution of discrepancies. If the statement was accepted, in accordance with these provisions Impowest would issue a tax invoice in respect of the work performed for the amount as agreed on the statement which was submitted and was paid fortnightly by direct debit into Impowest's nominated bank account. Impowest was required to meet any GST liability. Provision was made for variations to rates and prices. Impowest was required to ensure that Downer was in receipt of current information relevant to the prescribed payments system. The evidence is that payments by Downer were made direct to Impowest's bank account.
3. The contract conditions also stated that as a condition precedent to payment, Impowest should provide satisfactory evidence to Downer that its employees and suppliers, including plant and equipment hirers, "ha[d] been paid and that it ha[d] satisfied all statutory obligations with respect to the Works". Under cl.17, Impowest was required to provide a warranty in relation to workmanship for work it completed.
4. Relevant to Mr Zoltaszek's complaints about the allocation of work, cl.10 of the contract conditions stated that Downer made "no guarantee or commitment as to the duration, quantity or volume of the work to be given". Under cl.12 Impowest acknowledged that no representations had been made to Impowest "regarding the extent of [the] work to be provided by it".
5. The Subcontractor Agreement provided that in the event of the subcontractor failing to comply with its obligations under the subcontract or being insolvent or bankrupt or dying, the contractor may "at its sole discretion, terminate the subcontract" (cl.18). However the Scope of Works document, which refers generally to "technicians", provides in cl.5.11 that all work orders must be closed (which, it appears, means record details as to the status of the order) and that "In the event the technician fails to close all assigned work orders, the technician will be suspended for a day".
6. The contract also provides that the subcontractor may not assign or subcontract its obligations which would result in any person other than its direct employees being required to perform work at the customer's premises (cl.19). The subcontractor was required to comply with all occupational health and safety requirements (cl.20).
7. While the terminology adopted in a contract is not conclusive, in this case I am satisfied on all the evidence that the manner in which the parties are described is in fact reflective of the relationship in question (see Hollis v Vabu at [58]). Notwithstanding that some of the incidents of the relationship between Downer and Mr Zoltaszek are consistent with the existence of an employer/employee relationship, the evidence as to totality of the relationship between the parties, including the rights and obligations created by the contract taken together with the other evidence before the court of what occurred in practice, is such as to satisfy me that Mr Zoltaszek was not an employee of Downer.
8. It is the case that, as Mr Zoltaszek asserted the contract provided that unless Downer otherwise directed or agreed, working hours were Monday to Saturday, excluding public holidays, that appointments would be from 7.30 am to 5 pm and that a router or other person employed by Downer was responsible for routing/allocating the work requested by Foxtel to a particular subcontractor/technician. Mr Vlahakis' evidence is that from 2005 to May 2007 routing work was an ad hoc process undertaken by him or by other supervisors until the person who currently performs that task was employed.
9. However it is relevant to have regard to the type of work in question. In this respect I accept the unchallenged evidence of Mr Vlahakis, the Downer New South Wales Regional Manager for Subscription TV that while it was a part of his job to ensure that subcontractors performing the work required by Downer met completion targets, he did not have day to day supervisory responsibility or contact with the technicians. At the time of Impowest's engagement, Downer's Foxtel service technicians were engaged to perform satellite installation and maintenance services directed by Foxtel. There was a distinction drawn between those technicians who performed full installation (those generally more experienced who undertook the entire process, such as Mr Zoltaszek) and service call technicians who performed more limited functions. It appears that this distinction was reflected in the allocation of work to the various subcontractors.
10. I also accept Mr Vlahakis' evidence that the "allocation of work orders depend[ed] on the work provided to Downer by Foxtel" and that each technician was "part of a team designated to a particular area/region of Sydney which may or may not be based on where the technician [performing the work] liv[ed]".
11. At the time Mr Zoltaszek performed the work in question, there were four teams of between 15 to 20 technicians divided into north, south, east and west regions at Sydney. Each team generally worked in the same area most of the time, depending on availability of work and whether another team was short of technicians. Such evidence about "technicians" would be consistent with Mr Zoltaszek being an employee but is not inconsistent with a conclusion that he was a contract worker. In this respect it is notable that individual jobs were allocated to a particular subcontractor on the day before the work was to be carried out. Subcontractors could view the work allocated to them for the following day through the internet. Mr Zoltaszek's evidence is that the work was allocated to him by name as shown on documents on the compact disc before the court. Subcontractors were also sent an SMS message the day before the work. In the case of Impowest the message was sent to Mr Zoltaszek's phone number. If subcontractors could not attend to any of the allocated work orders for the next day for any reason, they were required to notify Downer. If possible, the work was reassigned to another subcontractor or rescheduled with the same subcontractor for another time.
12. However, the fact that Downer used Mr Zoltaszek's name in its online documentation for Impowest (a company) was explained by Mr Vlahakis. Downer referred to the applicant by his own name in the routing allocation of work process because he was in fact the technician who was going to perform the work for Impowest. The use of Mr Zoltaszek's contact details and phone number is consistent with the fact that Impowest did not provide other technicians to Downer. While Mr Zoltaszek only did work for Downer between October 2004 and 9 May 2007, it was open to him to have worked for entities other than Downer in this period.
13. Mr Zoltaszek seemed to suggest that in 2006 Downer contracted with him personally, Mr Vlahakis' evidence, which I accept in the absence of satisfactory evidence of any contract between Downer and Mr Zoltaszek, is that Mr Zoltaszek was employed by Impowest to perform the services required by Foxtel as a technician under the 2004 Subcontractor Agreement. Further, I accept that while Mr Vlahakis did not have any ongoing day to day working relationship with Mr Zoltaszek, he understood from a supervisor that Mr Zoltaszek preferred to do only two jobs a day and was "quite particular about the amount and type of work he wanted to do". From 2004 to about November 2006 Mr Zoltaszek "primarily performed Full Installations/Connection work". Downer's control over the times of appointments with customers and working hours must be seen in light of this evidence.
14. While subcontractors were required to be available during certain times, this did not mean work would be allocated for the whole of those hours. Subcontractors were not given a minimum or maximum number of work orders or hours of work they were required to perform. Importantly, where a subcontractor could not for any reason carry out a particular job, "it was open to it to delegate the work to another subcontractor... authorised by Downer". The subcontractor was "required to notify the designated supervisor" and the job could also be reallocated by Downer. The number of work orders was entirely dependent on the number of jobs sent to Downer by Foxtel.
15. Mr Zoltaszek referred to the fact that work had been allocated in the name of a company associated with Downer. However in cross-examination he conceded that it was open to subcontractors to refuse to accept jobs. Indeed he suggested that a job that he ultimately accepted for Impowest, during which he claimed he suffered an injury, was a job that had previously been refused by other subcontractors.
16. The "technicians engaged by the subcontractors [were] required to wear a Downer shirt with a Downer logo and Foxtel logo as well as their technicians ID tag". However, as explained by Mr Vlahakis, this was to "enable Foxtel to identify which technician [had] perform[ed] a particular job", to "enable the customer to ensure [that] the right person ha[d] attended their premises" and to "provide a customer the assurance that the technician [was] endorsed by Downer/Foxtel and [was] not a threat to their safety or property".
17. Similarly, given the possibility of workplace emergencies, the fact that Downer had subcontractor emergency information forms which required personal, medical and emergency information is not of itself indicative of an employer/employee relationship.
18. As indicated, Impowest was required to supply its own tool and equipment kit and was responsible for paying associated running costs. This equipment included dishes, mounts, wall plates and cable. Downer supplied Impowest with some items on consignment such as the Foxtel box, multi-switch and wireless telephone line, but did not reimburse Impowest's expenses. Mr Zoltaszek had his own van and Downer did not meet the running costs for that vehicle.
19. In the event that a technician caused damage to a customer's property or failed to properly complete an installation, the subcontractor was responsible for any repair work to be completed at their own time and expense. While Downer had an agreement with Foxtel which required supervisors to complete quality inspections of approximately 10 per cent of a technician's work, apart from this requirement technicians were "responsible for their own output" and did "not have day-to-day supervision when performing their work". Impowest provided a warranty in relation to workmanship.
20. Mr Zoltaszek was the only technician provided by Impowest but it was open to Impowest to provide other technicians. There was no restriction on the ability of subcontractors (or on Mr Zoltaszek) to perform work for other companies while working for Downer.
21. Subcontractors were paid according to each type of work order they undertook and invoiced. They were not paid an hourly rate and if they did not provide a technician to attend a work order or complete the work they were not paid for that work. Mr Zoltaszek was not paid by Downer or provided by Downer with any paid annual, personal or carer's leave entitlements. Mr Vlahakis' evidence, which I accept, is that subcontractors were liable for their own taxation arrangements. No payments were ever made by Downer to Mr Zoltaszek, but rather were made to Impowest.
22. There is provision in the Scope of Works for a technician to be suspended for one day in the event of a failure to "close" all assigned work orders although it is not clear whether this is intended to extend to the subcontractor. The Subcontractor Agreement provides only for termination of the subcontract in the event of the subcontractor failing to comply with its obligations, there is no provision for Downer to terminate the employment of a technician providing services for a subcontractor, such as Mr Zoltaszek.
23. I have had regard to the totality of the circumstances, including the nature and extent of the control exercisable by Downer over an individual technician such as Mr Zoltaszek, the provisions of the contract and the fact that Impowest could select its own workers to provide the services, the provision in relation to tools, equipment, insurance, warranties, the method of payment and provisions in relation to income tax, the limited control exercised or exercisable by Downer over Mr Zoltaszek's method of doing the work and the absence of any provision for dismissal of him by Downer (notwithstanding the provision for suspension). These matters and the circumstances in which the contract with Impowest could be brought to an end, seen in light of the fact that Impowest had the power to select and dismiss its technicians and was able to decline jobs and that Mr Zoltaszek could work for other entities is such that on the evidence before the court I am satisfied that, notwithstanding the matters raised by Mr Zoltaszek, at all material times Mr Zoltaszek was an employee of Impowest (and not of Downer) and that Impowest was an independent contractor providing the services of Mr Zoltaszek as a contract worker to Downer.
24. Accordingly, s.15 of the Act, which relates to discrimination by an employer or a person acting or purporting to act on behalf of an employer, has no application in these proceedings. However that leaves for consideration the applicant's claims based on s.17 and those parts of s.35 of the Act that apply to contract workers.

1. The respondent suggested in submissions that the applicant did not identify whether he claimed direct or indirect discrimination. It is the case that his points of claim are in a somewhat unorthodox form. However it is apparent from all of the material relied on by Mr Zoltaszek, including in particular his affidavit of 27 January 2010 which appears to have been prepared with some legal assistance (unlike other documents he relied on), that he intends to assert either direct or indirect discrimination and harassment. I have considered his claims on that basis.
2. Mr Zoltaszek asserts direct discrimination by Downer on a number of bases at various times. Downer was said to have treated him less favourably because of his disability than it treated a person without his disability in the same or similar circumstances.

1. In his points of claim Mr Zoltaszek claimed that when he visited a doctor (Dr Lee) in May 2006 regarding his back pain and asked for half a day off work he was not allocated any work by Downer for the other half of that day. He also complained (and this complaint seems to underlie much of his concern) that from "middle 2005" onwards he was allocated more work requiring heavy lifting (consisting of work such as connections) rather than the more profitable light duties or service calls. He also complained that he was required by Downer to drive a long way from his home.
2. In cross-examination Mr Zoltaszek conceded that the first time he told anyone at Downer that he had an injury was in a conversation with Mr Vlahakis on 11 December 2006 about his right elbow injury in which he requested light duties. Notwithstanding Mr Zoltaszek's evidence in his affidavit of 2 March 2010 that during 2006: "they knew my limitations due to my previous injury... sustained in September 2000", having regard to this concession I am not satisfied that he had in fact made Downer aware in any way of his claimed back injury or of any claimed or possible disability prior to December 2006. I accept Mr Vlahakis' unchallenged evidence that he did not know that Mr Zoltaszek had sustained any injury in September 2000 or at any time prior to December 2006 and that Mr Zoltaszek had not at any time requested light duty work from him prior to December 2006.
3. On the evidence before the court I am satisfied that the respondent had no knowledge of any alleged disability of Mr Zoltaszek prior to December 2006 and that between October 2004 and December 2006 Impowest provided the services of Mr Zoltaszek to Downer to perform the full range of duties specified under its agreement with Downer, consistent with Mr Zoltaszek's skills as a full services technician.
4. It is the case that from the time he commenced work as the technician for Impowest providing services to Downer, Mr Zoltaszek's work as a full service technician involved a significant number of installations and that this work was more physically demanding on average than service call work or digital migrations. However, in relation to the period prior to December 2006 the requirement in s.17 of the Act that any discrimination (whether direct or indirect) be "on the ground of" a disability has not been made out. The fact that Mr Zoltaszek did installations at this time, that light work may have been more profitable, that Impowest may have been allocated work at a distance from Mr Zoltaszek's home or that he was not allocated work for a half day on the day he visited Dr Lee has not been shown to be discrimination "on the grounds of" any disability of Mr Zoltaszek.
5. In these circumstances and given that Downer was unaware that Mr Zoltaszek suffered from any claimed injury or disability until December 2006, the ambit of his claim for direct discrimination can only encompass the period from December 2006 until 9 May 2007 as it has not been established that Downer discriminated against Mr Zoltaszek (whether by treating him less favourably or otherwise) "on the ground of" his disability as required under s.17 of the Act prior to that time.
6. Indeed, insofar as Mr Zoltaszek's claims of discrimination at any relevant time rely on his claimed back pain, I do not accept that Downer was aware of such condition during the time Mr Zoltaszek performed work for it, notwithstanding Mr Zoltaszek's general claims about Downer being aware of his limitations or his incapacity. In this respect it is notable that on his own evidence while Mr Zoltaszek provided medical evidence (albeit limited to an ultrasound report) to Downer about his right arm injury, he did not provide any contemporaneous evidence in relation to claimed back pain either to Downer or to the court. The medical certificate about an incapacity to work for a week (during which time he apparently did not work) is not such evidence.
7. The medical report of October 2007 is dated after the events in question. Further, and contrary to Mr Zoltaszek's claims that Downer was aware of his limitations, he performed the work of a full service technician prior to December 2006 and there is no evidence that he asked for light duties either at that time or thereafter on the basis of any disability consisting of or arising out of his back pain.

1. In relation to the period from December 2006 until 9 May 2007 Mr Zoltaszek alleges direct discrimination in relation to the allocation of work requiring heavy duties, the allocation of jobs at a distance remote from his home, an alleged refusal to allocate work to Impowest on four specified days and the alleged denial to Impowest of access to the internet on unspecified dates. The applicant must prove that the respondent treated him less favourably than, in circumstances that are the same or are not materially different, it treated or would treat another person without the disability. It must be shown that this was because of the applicant's disability and that such less favourable treatment resulted in an adverse consequence in terms of one of the matters specified in s.17(1) of the Act.
2. In his points of claim Mr Zoltaszek referred to s.17(1)(c) and (d) which relate to denying or limiting access to any benefit associated with the work or subjecting the worker to any other detriment. I have also considered s.17(1)(a) and (b) which relate to discrimination in the terms and conditions afforded to a contract worker and not allowing the contract worker to work or to continue to work.
3. The relevant comparator is a person who did not have a disability, but exhibited all of the same characteristics and conduct in the sense considered in Purvis (and see Fetherston v Peninsula Health [2004] FCA 485). Downer submitted that for Mr Zoltaszek this would be a contract worker who did not have a disability, but who had requested light duties jobs after December 2006. Mr Zoltaszek did not take any issue with this description.
4. Mr Zoltaszek nominated a person named as Martin Wysocki as a comparator in relation to his claim that he was discriminated against by reason of the allocation of work requiring heavy duties and the allocation of jobs at distances remote from his home. There is, however, no evidence from Mr Wysocki, although Mr Zoltaszek put before the court some evidence in relation to Mr Wysocki's work orders.
5. However I accept the evidence of Mr Vlahakis that Mr Zoltaszek was a full installation technician while Mr Wysocki was a service call technician. Mr Zoltaszek did not dispute this. In other words this is not an appropriate comparison as the nature of the work that Mr Wysocki was or could be given reflected the fact that he was a service call technician who would not be given the so-called "heavier" work of full installations about which Mr Zoltaszek complained. Hence, he is not an appropriate comparator. Rather, an appropriate comparator would be a contract worker who was the sole technician employed by a subcontractor and who was a full service technician who did not have a disability, but who requested light duties jobs after December 2006.
6. Impowest was engaged to provide the scope of work of a full installation technician which included, among other things, full installations, digital migrations, change orders, service calls and other services. Mr Vlahakis' evidence, which I accept, is that "[e]very work order requir[ed] some form of physical work to varying extents", although he conceded that service calls and digital migrations were generally of a lighter nature unless the job turned out to be more complicated than was originally anticipated. Downer supplied the services to Foxtel in response to advice from Foxtel as to orders placed by customers for the installation or maintenance of Foxtel services. There was no right to light duties work and no obligation on Downer to provide light duties work to an Impowest technician under a SubcontractorAgreement.
7. It is the case that, as Mr Zoltaszek contended, from October 2004 until November 2006 he primarily performed full installation/connection work. I accept that in December 2006 he asked Mr Vlahakis for light duties.
8. Mr Zoltaszek's evidence is that he showed Mr Vlahakis the ultrasound of his right elbow in December 2006 and asked him for light duties.
9. However, Mr Vlahakis' evidence is that he did not have a clear recollection of the conversation of 11 December 2006 with Mr Zoltaszek and that he did not "recall" Mr Zoltaszek showing him any ultrasound or explaining his injury to him and stated that all he knew was that Mr Zoltaszek requested light duties.
10. Having regard to Mr Vlahakis' concession that he did not have clear recollection of this conversation (but that he recalled he was asked about light duties), I accept Mr Zoltaszek's evidence that he showed Mr Vlahakis the ultrasound of his right elbow dated 9 December 2006 at the time he requested light duties. I note however that all that this ultrasound report shows is a change "suggestive of a partial thickness tear or moderate tendonitis" with no other significant abnormality being noted.
11. I am not satisfied that Downer was otherwise informed of the impact of that injury. Neither Impowest nor Mr Zoltaszek provided any medical certificate or report (beyond the ultrasound of the right elbow) to Downer to indicate the impact of the claimed injury or "hypoechoic change" identified or to indicate that the claimed disability continued from December 2006 to May 2007. In particular, notwithstanding the contractual requirement that if a subcontractor requested light duties for a technician it was necessary to provide Downer with a medical certificate or report explaining the type of work that could or could not be done and specifically what the injury prevented the technician from doing, neither Mr Zoltaszek nor Impowest provided any medical evidence to Downer in relation to the nature or extent of his claimed incapacity or any restriction on the type of work he could undertake. The medical certificate about Mr Zoltaszek's incapacity to work from 30 April 2007 to 4 May 2007 does not address this issue.
12. Insofar as Mr Zoltaszek takes issue with the nature of the work allocated to him (through Impowest from 11 December 2006 on), the availability and volume of light duties work was dictated by the number and type of customer appointments provided by Foxtel. Notwithstanding this, I am satisfied that Downer did allocate primarily lighter work to Mr Zoltaszek through Impowest from that time. The respondent tendered a graph based on the data provided by Mr Zoltaszek on the compact disc annexed to his affidavit of 2 March 2010. Mr Zoltaszek did not take issue with this graph which shows in very clear tabular form that there was a notable change in the type of work orders allocated to Impowest for performance by Mr Zoltaszek as its technician in December 2006. Prior to that time the work Downer allocated to Impowest was primarily full installations and connections. Thereafter Downer provided Impowest (and hence Mr Zoltaszek) with primarily light duty work from December 2006 to March 2007. The change in the nature of work allocated is significant, as it is clear that prior to mid-December 2006, while some light work was allocated to Impowest, the bulk of the work allocated and carried out by Mr Zoltaszek was in the nature of full installation connections consistent with his skills as a full service technician.
13. I am satisfied on the evidence before the court, in particular the material about work orders allocated to Impowest on the compact disc relied on by Mr Zoltaszek, that in accordance with Mr Zoltaszek's request for light duties jobs from December 2006 to May 2007 Downer in fact allocated Impowest (Mr Zoltaszek being its sole technician) light duty work (that is, excluding full installations or connections) instead of allocating to Impowest the full range of jobs provided for in the Impowest agreement and that had previously been allocated. This was so with the exception of a small amount of full installation and connection work which was allocated to Impowest in April and May 2007 which was accepted by Impowest notwithstanding that, as Mr Zoltaszek conceded, it would have been open to Impowest to refuse to accept any work allocated to it.
14. Thus, although Mr Zoltaszek provided no medical evidence to identify the nature, extent and impact of the claimed disability, he was in fact provided with light duties jobs, although he accepted a few heavier jobs in April and May 2007 without complaint.
15. Mr Zoltaszek has not established that he was treated less favourably than another contract worker in the same or similar circumstances who was a technician providing services as a full services technician who requested light duties jobs. His complaint of direct discrimination on this basis fails.
16. Moreover, even if there had been less favourable treatment after December 2006 (which presumably could only relate to the heavier jobs offered in April and May 2007), in circumstances where there was no then current medical evidence provided to Downer to identify the impact of the claimed disability (the December 2006 injury to Mr Zoltaszek's right elbow) and having regard to the fact that it was open to Impowest, (which Mr Zoltaszek controlled) to decline work, and the nature and quantity of work allocated to Impowest as evidenced by Mr Zoltaszek's data and the graph prepared for the respondent, it has not been established that any such treatment (allocating such heavier jobs) was on the ground of Mr Zoltaszek's disability. This complaint of direct discrimination is not made out.
17. Mr Zoltaszek also took issue with the allocation of jobs at a distance remote from his home. Between December 2006 and May 2007 Downer operated four teams consisting of approximately 15 - 20 technicians, allocated to geographical regions broadly encompassing the north, south, east and west areas of Sydney. As explained in Mr Vlahakis' evidence, the designation of a subcontractor or technician to perform the services under the subcontractor agreement in a particular region was not necessarily based on where the technicians employed by that subcontractor resided. Each team generally would work in the same area most of the time, but in the event that a technician was allocated a work order at a distance from home due to limited availability of work in the usual area or another team being short of subcontractors, Downer would endeavour to allocate all of that technician's work orders for that day around the same area, to avoid the need to travel long distances on that day.
18. Again Mr Wysocki is not the appropriate comparator. Mr Wysocki was not a full service technician and was allocated to the south region. Mr Zoltaszek was a full service technician in the north region. Mr Zoltaszek has not established that he was treated less favourably than another contract worker in the allocation of work in circumstances where Impowest had been contracted to provide a full scope of works, there was no express or implied provision in the Impowest agreement requiring the allocation of jobs to Impowest at locations close to Mr Zoltaszek's home and the allocation of jobs was directly dependent on the location of Foxtel customers on any given day in each geographical sector.
19. Critically, even if there had been less favourable treatment, Mr Zoltaszek has not established that the allocation of his work in any area was decided upon by reference to any disability on his part. This claim of direct discrimination fails.
20. The third category of complaint by Mr Zoltaszek is that he was not allocated work or, more accurately, that Impowest was not allocated work, on specific dates. Downer admitted that no work was allocated to Impowest on 24 January 2007, 27 and 28 February 2007 or 1 March 2007. However it is apparent from Mr Zoltaszek's data that he (through Impowest) was given full work orders in the periods immediately after these times. There is no evidence that Mr Zoltaszek was being treated less favourably than another contract worker in the allocation of work in circumstances where Mr Zoltaszek had requested light duties jobs in December 2006, had not provided medical evidence to identify the nature and extent of the disability (beyond the ultrasound report of December 2006) and had been provided with light duties jobs in January, February and March 2007, where the allocation of jobs was directly dependent on the location and number of Foxtel customers on any given day and where no guarantee was given to any subcontractor as to the duration, quantity or volume of the work to be provided. In other words, if there was no light duty work at all or in a particular area or insufficient light duty work in a particular area then a particular subcontractor could not be allocated light duties (and Mr Zoltaszek had requested light duties). Mr Zoltaszek conceded that he was not given any guarantee of work of any kind and he understood that there was no obligation on Downer to provide light duties work. There is no evidentiary basis for a claim of direct discrimination in this respect.
21. Again, even if there had been less favourable treatment, Mr Zoltaszek has not established that any failure to offer work to him through Impowest on those days was due to his disability. This complaint of direct discrimination fails.
22. Mr Zoltaszek also contended that there was a denial of access to Downer's internet site "several times". Mr Zoltaszek described this in his affidavit of 2 March 2010 as "blocked internet site" meaning that he could not access his "works" those days. However there is nothing in the evidence on which to base any claim of unlawful discrimination on the ground of disability in this respect and this complaint of direct discrimination also fails.

1. In his affidavit of 27 January 2010 Mr Zoltaszek claimed (in the alternative) that there was indirect discrimination by Downer within the meaning of s.6 of the Act, because the requirement or condition that he attend installation jobs, which involved some heavy lifting, was a requirement or condition with which he could not comply because of the injury to his right elbow in December 2006 and also the injury to his left arm on 9 May 2007. He contended that it was "not reasonable to require [him] to do installation jobs when there were plenty of other jobs that [he] could do which were not allocated to [him]" and that "the installation jobs were not an inherent requirement" of his contract work as he "contracted to do many other jobs apart from installation jobs". Mr Zoltaszek's claim was made prior to the 2009 amendments to the Act and I have considered s.17 and the definition of indirect discrimination as it stood at that time.
2. Downer submitted that Mr Zoltaszek had not established the cumulative requirements of s.6 of the Act. Notwithstanding Mr Zoltaszek's failure to address all the specific elements of indirect discrimination, I have considered each of his complaints as possibly raising a question of indirect discrimination.
3. First, as set out above, I accept that Downer was not informed of any injury to Mr Zoltaszek until December 2006 and that nothing that occurred before that time can be said to be on the ground of disability. As discussed, it has not been established that Mr Zoltaszek had any disability occasioned by any injury to his left arm or elbow prior to 9 May 2007. Further, any injury of the nature complained of that occurred or arose on 9 May 2007 could not be a basis on which discrimination on the ground of that disability would be established prior to that time. Notwithstanding that the definition of disability extends to a disability that may exist in the future it has not been established that any action by Downer prior to 9 May 2007 was on the ground of a possible future disability.
4. In relation to the claimed allocation of work requiring heavy duties to Impowest, it would appear that Mr Zoltaszek's contention is that the condition was that he attend installation jobs which involved some heavy lifting, that is, that there was a condition or requirement that he carry out the full scope of work of a full installation technician pursuant to the Impowest Subcontract Agreement which included work of a heavier nature. As discussed, it had not been established that Downer had been made aware of Mr Zoltaszek's claimed back pain. Hence nothing that it did that may be asserted to amount to indirect discrimination could be said to be on the ground of any disability consisting of or arising out of the claimed back pain.
5. Downer conceded that on the basis that Mr Zoltaszek's "disability" was moderate tendonitis of the right elbow as at December 2006, a substantially higher proportion of persons without that disability would be able to comply with the posited condition at that time.
6. However, as set out above, Downer did not require Mr Zoltaszek to perform the full scope of works as from 11 December 2006 to March 2007. Rather, he was allocated light duties work on a regular basis. No further medical evidence was provided to Downer (except the medical certificate in relation to an absence from work). It was only in April and May 2007 that a few of the jobs allocated to Impowest involved some heavier tasks. As such Mr Zoltaszek's complaint must necessarily be limited to those few jobs. It was open to Impowest to decline such work. It has not been established that there was a requirement on Mr Zoltaszek to work a full range of duties after 11 December 2006.
7. In any event, it has not been shown that if there was any "requirement" to perform the full range of works it was not reasonable. While s.17 of the Act is concerned with discrimination by a principal against a contract worker, it is relevant that while the Subcontractor Agreement required Impowest to provide a technician to perform the full range of works, there was no requirement that Impowest provide only the services of Mr Zoltaszek. It was open to Impowest to engage additional or other labour if it wanted to perform the full range of works for those few jobs allocated to Impowest in April and May 2007 which required heavier tasks.
8. Moreover, the evidence is clear that on occasions when heavier work was allocated to Impowest (and hence in practice to Mr Zoltaszek) some time after December 2006, Mr Zoltaszek, who was a full service technician, agreed to undertake that work, albeit there was no requirement upon him to do so. He conceded that Impowest could have refused the work on the grounds that he was unable to perform those duties by reason of his claimed disability, but that it did not do so. Impowest was required to and did take out workers' compensation insurance on behalf of its employees, including the applicant. It provided certificates of currency for such insurance to Downer. If Mr Zoltaszek was unable to perform the full range of duties after December 2006 and was suffering economic loss as a result of that injury, it was open to him to make a claim upon that workers' compensation insurance and open to Impowest to provide another technician.
9. In any event, Mr Zoltaszek has not established on the evidence before the court that he was unable to comply with any requirement to undertake heavier work on those few occasions it was offered in April and May 2007 (prior to 9 May 2007) notwithstanding his claimed disability. On those occasions that the work was offered to him and he did not turn it down, he in fact complied with the requirement and was able to do the work.
10. In these circumstances, it is not necessary to consider whether the circumstances are within s.17(2) of the Act (although I note that the inherent requirements of the job were to perform the full scope of works). No indirect discrimination is established on this basis.
11. The complaint about allocation of jobs at a distance remote from Mr Zoltaszek's home may also be seen as a claim of indirect discrimination on the basis that the posited condition was one whereby Mr Zoltaszek was required to travel to places remote from his place of residence. There is, however, no evidence that there was a condition to this effect as Mr Zoltaszek's evidence is that technicians simply went to the jobs where customers were within particular regions and that there was an allocation of jobs to various contractors. Nor is there any evidence that a substantially higher proportion of persons without the claimed disability would have been able to comply with any such requirement to travel long distances more so than people with the applicant's disability (insofar as his right elbow injury constituted a disability). In any event, Mr Zoltaszek has not established that he was unable to comply with any such condition. He drove to all of these places.
12. Further, it has not been established that any condition requiring travel in order to undertake the services was or would not be reasonable. There was no express or implied condition or provision in the Impowest Agreement specifying that work would be allocated to Impowest at a place close to Mr Zoltaszek's residence. Downer had no control over the addresses of persons requiring Foxtel installations or other services. Hence on certain days the majority of jobs may have been at distances remote from Mr Zoltaszek's home. Further, Downer attempted to ensure that subcontractors were provided with jobs in or about the same area on any one day in order to avoid excess travel. The applicant's claim of indirect discrimination in this respect also fails.
13. It is difficult to see how Mr Zoltaszek's claim about Downer's failure to allocate work to Impowest on specific dates could be seen in terms of a claim of indirect discrimination, except insofar as it mirrors the requirement to perform heavy duties which is considered above. Similarly, no claim of indirect discrimination is established on this basis. The evidence is not such as to establish any discrimination in this respect "on the grounds of" any disability of Mr Zoltaszek. Nor is there any evidence to establish indirect discrimination in relation to Mr Zoltaszek's complaint about denial of access to Downer's internet site on occasion.
14. No indirect discrimination within the Act has been established on any of these bases.

1. It is convenient to consider at this point the contentions that Mr Zoltaszek raised about the events of 9 May 2007 in relation to a job allocated to Impowest which was described on the internet details provided to Mr Zoltaszek as a task in relation to which "3 storey ladder needed this is 3 storey home". He claimed that these circumstances were within s.17(1)(c) and (d) and s.35(1)(a) and (b) of the Act, apparently on the basis that he was allocated this work and also because he claimed he injured his left arm in attempting to complete the work.
2. Mr Zoltaszek's evidence is that this job had been rescheduled three times (that is, refused by other subcontractors) because of heavy lifting. Notwithstanding that Mr Zoltaszek agreed in cross-examination that works were reallocated when not accepted by a subcontractor, he also claimed that "basically" on 9 May 2007 he was forced to do this job. I do not accept this claim having regard to this evidence of Mr Zoltaszek and also to his evidence that he had refused jobs in February and March 2007 which Downer then reallocated to another technician.
3. As discussed above and for the reasons given, it has not been established that the allocation of full services work to Mr Zoltaszek through Impowest was discrimination of any kind on the ground of his disability (which at that stage was the December 2006 right elbow tendonitis).
4. Mr Zoltaszek was not an employee of Downer. Section 35(1) of the Act is not applicable, although s.35(4) may be applicable. However it has not been established that allocation of this work constituted harassment "in relation to" Mr Zoltaszek's claimed disability of right elbow tendonitis, given the limited evidence in that respect provided to Downer by Mr Zoltaszek, the time that had passed since his December 2006 request for light duties and his acceptance and completion of some heavier work in April and May 2007.
5. Mr Zoltaszek attested that after he went to the site on 9 May 2007 he initially refused to go ahead with the job and left the site. He claimed that he was ordered by Mr Theodorou to return to do the connection, that he returned to the site, but while "dropping down" the ladder injured his left elbow. He claimed he did not finish the work and informed Foxtel and the Downer supervisor, Mr Theodorou, "about accident at work".
6. As to any s.17 claim in relation to the events of 9 May 2007 which occurred after the initial allocation of the job was accepted by Mr Zoltaszek, on the evidence before the court I am not satisfied that it has been established (insofar as this was intended to be contended) that Mr Zoltaszek was required to complete the job. Such a suggestion is contrary to Mr Zoltaszek's evidence about Impowest's ability to refuse work and the prior rescheduling of the task in issue. Further, there is evidence before the court that provision was made for certain work orders, described in the scope of works as "jeopardised" orders, that could not be completed fully on the scheduled day for reasons including technical difficulties and weather conditions. I do not accept the implicit suggestion that all allocated works had to be completed by the technician for the subcontractor to which they were allocated on the date specified.
7. I accept the affidavit evidence of Mr Theodorou, the Downer supervisor for subscription TV, that he received a telephone call from Mr Zoltaszek one afternoon in or around early May 2007 in which Mr Zoltaszek stated that he needed a three-storey ladder and that such a ladder would ordinarily require two people to use it. It is consistent with the scope of works conditions that a technician contact a supervisor for assistance in such circumstances. Mr Theodorou told Mr Zoltaszek to go on to his next job and to come back in an hour's time and the ladder should be there. He arranged for one of the apprentices to take the three-storey ladder to the applicant. He was informed by the apprentice that it had started raining and that he could not put the ladder up. Mr Theodorou instructed the apprentice not to put the ladder up, but to see if he could help Mr Zoltaszek put a cable through the roof using the stepladder. Mr Theodorou did not hear from the apprentice or from Mr Zoltaszek after this conversation and "believed that the job went ahead and that they did not have any further problems in completing the work required". However he was subsequently informed that the job allocated to Mr Zoltaszek did not go ahead, notwithstanding that neither Mr Zoltaszek nor the apprentice had reported to him that the job did not go ahead (as required by the scope of works conditions). Mr Theodorou telephoned Mr Zoltaszek to find out what had happened, but could not get hold of him. He was told by Downer's router some two or three days after 9 May 2007 that Mr Zoltaszek was sick.
8. Mr Theodorou also claimed that he subsequently spoke to the apprentice who told him they could not fix it up because after running the cable inside they could not get to the satellite dish because it was raining. There is, however, no evidence from the apprentice before the court. I accept that Mr Theodorou's understanding was that the ladder was not taken off the truck or moved by Mr Zoltaszek or the apprentice and that when he spoke with Mr Zoltaszek, Mr Zoltaszek did not mention anything about not being able to do the job or any heavy lifting at the time when the job was arranged.
9. However this evidence is not such as to establish that Mr Zoltaszek was not in fact injured as he claimed, although I accept that Mr Theodorou first became aware of a claim by Mr Zoltaszek that he was injured on that occasion when he was informed by a WorkCover representative that Mr Zoltaszek had made such a claim.
10. Mr Zoltaszek's evidence was that he told Mr Theodorou and another person at Downer about his injury. However Mr Vlahakis' evidence is that he recalled receiving a telephone call from Mr Zoltaszek (which he suspected may have been in May 2007) in which Mr Zoltaszek told him "I was lifting this ladder up and injured my wrist". I accept that Mr Zoltaszek did so inform Mr Vlahakis. When asked how "bad" the injury was, Mr Zoltaszek said that he did not know, but that he could carry on with the work and would go to see the doctor, it would be fine and could he please just be given service calls. I also accept this evidence. Mr Vlahakis' recollection was that the job on 9 May 2007 which required a three-storey ladder was not completed, but he did not know whether that was because of an injury or because of wet weather. I accept his evidence that Mr Zoltaszek did not come into the office to complete any incident report and nor did he receive any medical certificate or report from Mr Zoltaszek or Impowest about any injury to Mr Zoltaszek that occurred on 9 May 2007 (although it is the case that Mr Zoltaszek completed a Workers Compensation claim form dated 30 May 2007 submitted though Downer's insurer on 6 June 2007 and obtained Workcover medical certificates (one of which named his employer as Impowest) for the period from 10 May 2007 to 27 June 2007.
11. It has not been established that Mr Zoltaszek (or Impowest) provided any information or medical evidence to Downer in relation to the nature of any alleged injury or disability arising out of an incident on 9 May 2007 prior to the cessation of the Impowest agreement. Rather, on or about 9 May 2007 Mr Zoltaszek contacted Workcover, claimed he injured his wrist and that he would go to the doctor. He subsequently complained that he had strained his arm whilst on a job.
12. It is notable that Mr Zoltaszek accepted the 9 May 2007 job despite the clear indication of the need for a three-storey ladder notwithstanding his evidence that he had previously turned down work he thought he could not do. Mr Zoltaszek had not provided Downer with current medical evidence about his right elbow injury or any medical evidence at all in relation to any restrictions on the type of work he could undertake. Three weeks prior to 9 May 2007 he had done a three-storey ladder job. It has not been established that the events of 9 May 2007 involved discrimination of any kind in relation to Mr Zoltaszek or that anything at that time or thereafter was done by Downer on the grounds of Mr Zoltaszek's disability within the Act.
13. Even if Mr Zoltaszek carried out work on 9 May 2007 in which he suffered a workplace injury this does not establish discrimination on the ground of his prior claimed disability. Nor is there any evidence to establish that the events of 9 May 2007 constituted harassment of Mr Zoltaszek by Downer on the ground of his December 2006 disability for the same reasons that discrimination on the ground of such disability has not been established.
14. It is not necessary to determine precisely what occurred on 9 May 2007 towards performance of the work order. However I note that, contrary to his initial claim about putting up the ladder, Mr Zoltaszek appeared to concede in cross-examination that another person (an apprentice) put the ladder up and that the job was not completed because of rain.
15. Mr Zoltaszek contended that his right elbow injury and back pain were aggravated because of heavy lifting on 9 May 2007. There is however no evidence before the court to establish this contention. Nor is there any basis for a claim that if Mr Zoltaszek suffered a workplace injury on that day, that constituted or revealed discrimination or harassment on the ground of disability within this Act.
16. Accepting for present purposes that Mr Zoltaszek suffered a workplace injury on 9 May 2007, this does not establish direct or indirect discrimination or harassment of a person with a disability, bearing in mind that as at 9 May 2007 the only "disability" in issue notified to Downer was the injury to Mr Zoltaszek's right elbow in December 2006 and that light duties had been allocated thereafter (with the exception of a few heavier duties in April and May 2007 that were carried out by Mr Zoltaszek on behalf of Impowest). Mr Zoltaszek has not established causation.
17. In relation to any claim of indirect discrimination on this basis it has not been established that there was a requirement to perform the full range of work (given the allocation of light duties to Mr Zoltaszek). Insofar as it could be said that there was any such requirement referable to 9 May 2007, in circumstances where on a few occasions in April and May 2007 the applicant had been able to undertake heavier duties work despite his claimed disability any such requirement was reasonable. Even if Mr Zoltaszek suffered an injury while carrying out a particular task this does not of itself establish unreasonableness.
18. It is not in dispute that after 9 May 2007 Impowest performed no further services for Downer and that Mr Zoltaszek returned all the equipment that belonged to Downer.
19. The circumstances in which this occurred are not entirely clear. Mr Vlahakis' recollection was that in about May 2007 he was advised by a Downer storeman that Mr Zoltaszek had, after 9 May 2007, come into the Downer warehouse and dropped off all the Foxtel equipment Impowest held on consignment but that at no time did Mr Zoltaszek or Impowest advise Downer that it was ceasing to perform work for it. Mr Zoltaszek did not dispute this evidence, which I accept (although he appeared to take issue with Mr Vlahakis' conclusion that this indicated a wish to cease to perform work for Downer). While Mr Zoltaszek gave evidence that he subsequently wrote to and emailed a contracts administrator at Downer about an unpaid invoice for the week of 5 March to 9 March 2007, this does not address Mr Vlahakis' evidence that Mr Zoltaszek did not indicate whether he intended to continue to perform work for Downer. There is no evidence that Mr Zoltaszek (or Impowest) took issue with Downer in relation to the fact that Downer subsequently ceased to allocate work to Impowest on the assumption that Impowest was no longer intending to provide subcontractor services. I accept that Mr Zoltaszek returned 55 items of Foxtel equipment to Downer on 21 May 2007.
20. It appears that Mr Zoltaszek may have intended to raise some claim in relation to an alleged dismissal. However Mr Zoltaszek was not an employee of Downer. There is no evidence that Downer terminated the contractual arrangement with Impowest on the ground of any disability of Mr Zoltaszek.
21. Insofar as it is intended to be claimed that there was direct or indirect discrimination arising from any dismissal there is no evidence of any dismissal or termination of Mr Zoltaszek. Even if Impowest and Mr Zoltaszek did not work for Downer after 9 May 2007 because Mr Zoltaszek had injured his left elbow that of itself does not establish discrimination (of any kind) or harassment by Downer on the ground of Mr Zoltaszek's disability.
22. Finally, I note that the claims Mr Zoltaszek made about an invalid contract between Impowest and Downer are not such as to establish that he has any remedy against Downer.
23. As no discrimination or harassment within the Act has been established it is not necessary to consider the issue of loss or damage. The applicant has not established any unlawful conduct under the Act.
24. The application should be dismissed. I will hear the parties in relation to costs.

I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Barnes FM