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Clack v Command Recruitment Group Pty Ltd & Anor [2010] FMCA 42 (8 February 2010)

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Clack v Command Recruitment Group Pty Ltd & Anor [2010] FMCA 42 (8 February 2010)

Last Updated: 9 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLACK v COMMAND RECRUITMENT GROUP PTY LTD & ANOR

HUMAN RIGHTS – Disability discrimination – senior manager diagnosed with type 1 diabetes – whether unfavourably treated in relation to leave, proposed new duties, and termination of employment – circumstances of comparator employee – whether treatment occurred because of disability – whether treatment involved harassment in respect of disability – all witnesses’ evidence generally unreliable – onus of proof on applicant – no breach of legislation established – application dismissed.


Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165
Penhall-Jones v State of NSW (No.2) [2008] FMCA 832
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537

Applicant:
DARREN CLACK

First Respondent:
COMMAND RECRUITMENT GROUP PTY LTD (ACN 054 275 919)

Second Respondent:
MICHAEL COLLINS

File Number:
SYG 3399 of 2008

Judgment of:
Smith FM

Hearing dates:
12 &13 August, 9, 10 & 11 December 2009

Date of Last Submission:
23 December 2009

Delivered at:
Sydney

Delivered on:
8 February 2010

REPRESENTATION

Counsel for the Applicant:
Mr D Shoebridge

Solicitors for the Applicant:
Barwick Legal

Counsel for the Respondents:
Mr P Newall

Solicitors for the Respondents:
Parry Carroll Lawyers

ORDERS

(1) The application is dismissed.
(2) The parties must file and serve written outlines of submissions and any affidavits in support of their applications for costs, before 22 February 2010.
(3) Any written submission or evidence in reply must be filed and served before 9 March 2010.
(4) The applications for costs will be determined in chambers.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3399 of 2008

DARREN CLACK

Applicant


And


COMMAND RECRUITMENT GROUP PTY LTD
(ACN 054 275 919)

First Respondent

MICHAEL COLLINS

Second Respondent


REASONS FOR JUDGMENT

  1. Mr Clack was employed by Command Recruitment Group Pty Ltd (“Command”) in its NSW office as Engineering Recruitment Manager from June 2005, and as its NSW Sales Manager from June 2006. He felt unwell at the end of 2006, and on 19 January 2007 he was told that he suffered from Type 1 diabetes and would require insulin injections and other measures for the remainder of his life. He took time off work, and was told that a new position of National Accounts Manager would be created to accommodate his disability. However, he saw this as a demotion, and identified other events which he later complained were unlawful discrimination or harassment because of his disability. Most significantly, he so characterised the termination of his employment by the managing director and sole proprietor of Command, Mr Collins, which occurred on 1 or 2 March 2007.
  2. The circumstances of Mr Clack’s termination are the subject of conflicting and unreliable evidence from all of the participants. It appears to me that the procedures which were followed by Mr Collins were probably unfair, and many of the reasons for the termination which were presented to the Court were contrived with hindsight. If the present application raised a matter under workplace legislation, with an onus on the employer to exclude unlawful termination, then Mr Clack might have succeeded in his claim for compensation. However, his application is brought under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (as renamed), based upon the termination on 28 November 2008 of a complaint to the Australian Human Rights Commission dated 25 February 2008. Under the human rights legislation, an applicant has the onus of proof to establish a ground of disability discrimination. For the reasons which follow, I have not been satisfied as to any breach of the Disability Discrimination Act 1992 (Cth) on the balance of probabilities, according to the standard of satisfaction provided in s.140 of the Evidence Act 1995 (Cth).
  3. The application to the Court was filed on 23 December 2008, and named Command and Mr Collins as respondents. However, Command had appointed a voluntary administrator on 13 June 2007, and the administrator had reported to creditors on 2 July 2007 that the company was insolvent. It was common ground that a stay on proceedings against Command operated under ss.440D or 471B of the Corporations Act 2001 (Cth) and continues to operate. It appears that Command’s Sydney business has been wound up, and, with retrenchments, has passed into the hands of another company in Mr Collins’ group of companies. It there continues to be managed by Mr Collins with the involvement of the three other witnesses who were called by him in the present proceedings: Mr Lowe, Mr Lamb, and Ms Downes.
  4. Mr Clack has shown no intention to obtain leave to proceed against Command by application to the Supreme Court or the Federal Court, and he has proceeded with his application only as against Mr Collins. In all the circumstances, it appears to me appropriate now to dismiss the application against Command as incompetent in the absence of leave.
  5. Mr Clack’s separate claims against Mr Collins rely upon ss.122 and 123 of the Disability Discrimination Act. Section 122 provided, at the relevant time:

Section 123 contained provisions attributing to a body corporate the state of mind and conduct of a director, servant or agent, acting within the scope of his or her actual or apparent authority.

  1. Mr Collins did not initially concede that these provisions could encompass his conduct which is the subject of Mr Clack’s complaints, based upon a contention that Command was not Mr Clack’s ‘employer’ for the purposes of the Disability Discrimination Act. He alleged that Mr Clack’s employer was Consultants Exchange (Australasia) Pty Ltd (“CXC”), a company unrelated to the Command group, which was the sponsoring employer for the purposes of a subclass 457 visa held by Mr Clack.
  2. In response, Mr Clack’s counsel relied upon the opening words of s.15(2), which encompass “a person ... purporting to act on behalf of an employer”. It was submitted that these words would overcome any uncertainties whether Command should in law be characterised as Mr Clack’s employer in relation to s.15, if not s.35.
  3. By the end of the hearing, the documentary and circumstantial evidence of an employment relationship between Command and Mr Clack, and of Mr Collins being the controlling mind and actor on behalf of Command in relation to Mr Clack’s employment, was overwhelming. Evidence of Mr Clack’s legal relationship with CXC had not been explored, nor its relationship with Command and the Department of Immigration in relation to Mr Clack’s employment. In his closing submissions, counsel for Mr Collins accepted that Command should be treated as the ‘employer’ for the purposes of ss.15 and 35 of the Disability Discrimination Act, and that Mr Collins would be liable under s.122 if I found breaches of those sections constituted by his conduct. It is therefore unnecessary for me to explore any of the ‘employer’ issues further.

Mr Clack’s complaints

  1. Mr Clack complained to the Commission that:
    1. Mr Collins pressured him to take a pay cut on several occasions on the pretext that “the business is now struggling”.
    2. When Mr Clack refused, Mr Collins informed Mr Clack that he would deduct a half days’ salary whenever Mr Clack attended a medical appointment, even though the majority of the appointments lasted less than 1.5 hours.
    3. While Mr Clack was on leave, Mr Collins cancelled his email access and secretly read Mr Clack’s emails, and he continued to monitor them when he returned.
    4. Mr Collins told Mr Clack that his role would be changed to National Accounts Manager, and that he would need to complete timesheets and report to Mr Collins every day. No job description and details of remuneration were given.
    5. In the course of these events, Mr Collins made upsetting comments to Mr Clack about his diabetic condition, in particular, by saying, “I don’t know what use you are going to be to me in that condition”, and “well, it is not as if you’ve got cancer”.
    6. On 28 February 2007 Mr Clack received a pay slip with substantially less pay than normally due, with deductions for unpaid sick leave and without his usual car allowance. He was told that Mr Collins had instructed the making of these deductions.
    7. On Thursday 1 March 2007 his employment was peremptorily terminated by Mr Collins, in the following circumstances:
      • On Thursday 1 March, I had several client meetings out of the office. One of these meetings I deferred to attend a short medical appointment concerning my diabetes. I subsequently found out Mr Collins had called all of my clients that day confirming my attendance at their offices. When he found out I had deferred a meeting he called me and informed me of “gross misconduct” and demanded my resignation. I refused to do so knowing I had done nothing wrong. At which point, I was verbally terminated from my employment. The next day I spoke with Mr Collins on the phone and requested notice of termination in writing. Mr Collins threatened to call the Dept of Immigration and he would get me deported as I was sponsored [by] Command on a 457 visa. He also informed me he would call the police if I did not return a laptop and e-tag within the hour. I informed him this was unrealistic and would return the property three days later, which was agreed. The next day I received a call from Mr Collins to inform me the police and Immigration were on their way round. I returned the computer and tag to a company manager that evening.
    8. On 21 March 2007, he received an undated letter signed by Mr Collins, which stated:
      • This letter is to confirm that this your employment as an account manager has been terminated as of today as a result of your numerous breaches of the terms of your employment and your failure to follow reasonable directions to attend a meeting with the Mike Collins and David Lamb at our office 5.30pm on the 1st March 2007 and failure to attend the second arranged meeting this morning at 8.30pm (sic) in order to explain your conduct in relation to an incident which occurred yesterday.
      • We note that there have been many incidences of unsatisfactory behaviour by you in relation to your employment for which you have been given numerous warnings. Attendance and your general whereabouts during working hours being particularly noted.
      • Your conduct has included serious breaches of the terms of your employment dating back to late last year culminating in your giving me yesterday conflicting advice regarding your attendances at customers. I regard your explanations regarding the information that you gave to me as being totally unsatisfactory but was prepared to give you an opportunity to explain your actions at the meetings last night and this morning. You have refused to attend the meeting and accordingly your employment has been terminated.
      • You are also in possession of a company laptop. This must be returned by 5pm Monday.
    9. Mr Clack complained generally:
      • The allegations in the letter were all false, I had an exemplary record with the company and had never received a written or verbal warning and never had any problems until I was diagnosed with Diabetes.
      • This whole situation has been extremely stressful having to adapt to the diabetes as well as having to find new employment so not to jeopardise my visa status. I feel I have been discriminated against on the grounds of my medical condition affecting me both physically and mentally as well as financially.
  2. Mr Clack’s narrative of these complaints was repeated in his affidavit sworn on 9 March 2009. However, in the course of the proceedings some of his complaints about Mr Collins lost their substance, and appeared to have been abandoned in the light of further evidence from Mr Clack or from Command.
  3. For example, in relation to Mr Clack’s complaints about his last pay slip, Mr Clack was unable to establish to my satisfaction that Command’s salary calculations were not based upon an accurate accounting for his leave and salary entitlements. Moreover, no reliable evidence was elicited of any directions being given by Mr Collins about those calculations. The Command salary documents in evidence are somewhat obscure, since they were prepared upon the hypothesis that Mr Clack’s sponsoring employer for immigration purposes was CXC, which also issued differently formulated pay slips. However, Mr Clack did not dispute that he had run out of paid sick and recreation leave entitlements, and that he had previously been paid for some additional leave ‘in advance’, and that he had been given permission to take unpaid leave to attend counselling and other medical appointments during February 2007. His rate of salary was, in fact, never reduced from the amount agreed in relation to the NSW Sales Manager position.
  4. Mr Clack also did not dispute that his previously paid car allowance was, in fact, paid on the same day that it was due, after he queried this with the accounts department. There is real doubt whether the written employment agreement for the NSW Sales Manager position provided a $15,000 car allowance additional to the gross salary. At least, the evidence clearly allowed uncertainty within Command whether this should have been accounted as an inclusion in the agreed salary rather than as an extra allowance. In fact, the more generous interpretation was applied by Command until the employment was terminated.
  5. In relation to his work emails, Mr Clack did not dispute that the relevant actions were, in fact, not those of Mr Collins but of Mr Lowe, a management consultant engaged by Command to investigate and address its financial difficulties. Following discussions with Mr Collins during December 2006, Mr Lowe was appointed as “Operations and Sales Director of the Command Group of Companies”, and commenced that role in early January 2007. Mr Lowe was based in Melbourne, but travelled regularly to Command’s head office in Sydney. When Mr Lowe commenced, he implemented general policies restricting remote access to IT systems. He also took responsibility for re-directing Mr Clack’s email account during his periods of leave after being diagnosed with diabetes, and for responding immediately to Mr Clack’s announcement of his disability. Mr Collins was not involved in these events, since he was outside Australia on leave until the end of January 2007.
  6. In his opening address, counsel for Mr Clack referred only to the allegations of unlawful discrimination in relation to:
    1. the deduction by Command, on the direction of Mr Collins, of half days’ pay for medical attendances by Mr Clack;
    2. the actions of Mr Collins which ‘demoted’ Mr Clack to a National Accounts Manager position, requiring reporting to Mr Collins, and with less prestigious duties and lower remuneration;
    3. the two hurtful statements made by Mr Collins to Mr Clack concerning his disability; and
    4. the summary termination by Mr Collins of his employment with Command.
  7. It was alleged that these were all ‘detriments’ within s.15(2)(c) or (d) of the Disability Discrimination Act, in which the employer discriminated against Mr Clack “on the ground of [his] disability” in the manner defined by s.5 of the Act. Counsel disclaimed reliance on the ‘indirect discrimination’ provisions of s.6. He also relied upon s.35(1) and (2), on the basis that the same conduct evidenced unlawful harassment by Command and Mr Collins “in relation to the disability”.
  8. Mr Clack’s counsel’s closing submissions did not seek to depart from his opening, and were obscure in relation to the particular findings of unlawful conduct which I was invited to make. Indeed, he broadly addressed only the last three of the above matters. In these circumstances, I do not propose to make any findings additional to what I have said above, about the other matters of complaint made by Mr Clack in his statement to the Commission.
  9. I shall first consider the above four matters as allegations of unlawful discrimination under s.15, before considering them as allegations of harassment falling within s.35.

The tests of unlawful discrimination

  1. Section 46PO(1) of the Australian Human Rights Commission Act confers a statutory right to apply to the Federal Court or this Court “alleging unlawful discrimination by one or more of the respondents to the terminated complaint”. There are jurisdictional conditions, which do not need to be examined in the present case. “Unlawful discrimination” means “any acts, omissions or practices that are unlawful”, inter alia, under Part 2 of the Disability Discrimination Act.
  2. As I have indicated above, Mr Clack relies upon the prohibitions in s.15(2)(c) and (d) and s.35(1) and (2) in Part 2 of the Disability Discrimination Act. Because s.15 has been recently amended, it is appropriate to set out its full terms as it stood at the relevant time. I note that Mr Collins did not seek to rely upon s.15(4), nor any other ‘defence’ provision in the Act.
  3. Section 15 provided:
  4. It is well established that the references in s.15 to “discriminate ... on the ground of the ... disability” are not at large, but are confined by the definitions of direct disability discrimination in s.5 and of indirect disability discrimination in s.6. Only the former is relied upon by Mr Clack. It provided at the relevant time:
  5. A “disability” was defined in s.4 to include “(a) total or partial loss of the person’s bodily or mental functions” and “(e) the malfunction, malformation or disfigurement of a part of the person’s body”, and extended to a disability which “(k) is imputed to a person”.
  6. In the present case, there was a notable absence of any expert medical evidence applying this definition to the disease or malfunction of Type 1 diabetes, nor concerning the particular diagnosis, treatment, prognosis, and effects of Mr Clack’s diabetes on his ability to perform the duties of his employment. It was common ground that he presented to Command a medical certificate showing that he had been diagnosed with the condition, and Mr Collins’ counsel conceded that this established his having a ‘disability’ as defined. The evidence shows that the discovery of his disease was a considerable emotional shock to Mr Clack, but his immediate and long term mental and physical impairments arising from the diagnosis were very poorly explained in the evidence. It is common ground that he requested and was allowed several weeks during January and February 2007 to recover and to embark on counselling and medical management in relation to his disease. The exact nature of these activities was left unexplained.
  7. The parties were also content to present their cases without exploring or challenging the assumptions of the various witnesses as to immediate and long-term effects on Mr Clack of his being diagnosed with Type 1 diabetes. I was left with an impression that different witnesses held, and expressed, widely differing beliefs as to its possible incapacitating effects on his work, but I have found no evidence allowing me to assess the correctness or genuineness of their beliefs and statements. These gaps in the evidence about the nature of Mr Clack’s disability added to my difficulties in weighing the significance, if any, of the disability in the mind of Mr Collins and his advisor, Mr Lowe, leading up to Mr Clack’s dismissal.
  8. As a result of the s.5 definition of direct disability discrimination, it is necessary for Mr Clack to establish that Mr Collins, as the person whose actions are attributable to the ‘discriminator’, ‘treated’ Mr Clack less favourably than he would have treated a person in the same circumstances but without diabetes, and did so ‘because of’ that disability. Section 5(1) therefore poses two requirements: a finding that Mr Collins ‘treated’ Mr Clack less favourably than he would have treated the hypothetical comparator, and, if less favourable treatment is found, also a finding that Mr Collins’ less favourable treatment was ‘because of’ Mr Clack’s disability. As I have indicated, Mr Clack has the onus of proof on both of these requirements, and, of course, also of the occurrence of the conduct alleged to constitute the discriminatory treatment.
  9. These statutory provisions have been explored in numerous cases, and both counsel referred me to the recent discussion by the High Court in Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92. The judgments in that case explored the conceptually difficult comparison of unfavourable treatment, under the first requirement of the definition. Subsection 5(2) and the subject matter of the legislation suggest that the Act intends to permit different treatment of a disabled person, where this attempts to accommodate or assist that person. It does not intend a total prohibition on discriminatory treatment. Also, the definition operates in a context where the surrounding circumstances of unfavourable treatment of a disabled person may often not be ‘normal’. Considerations such as these led the majority justices to reject the submission that the comparator’s hypothetical ‘same or not materially different’ circumstances should exclude all attributes or consequences of the disability itself, and led them to confine the matters which are to be excluded from the comparator’s circumstances.
  10. Thus, when considering the adverse treatment of a disturbed school student, Gleeson CJ said at [12]:
  11. Gummow, Hayne and Heydon JJ said at [225], with whom Callinan J agreed on this point at [273]:
  12. In the present case, this approach leads me to assess Mr Collins’ conduct towards Mr Clack upon the basis that the comparator’s ‘same or not materially different circumstances’ included some circumstances which were the consequences of Mr Clack’s being diagnosed with Type 1 diabetes. These include his requiring absences from his workplace for medical reasons, and the (if only perceived) need for him to make some lifestyle changes in relation to diet, travel and stress, to allow better management of his health. They also include Mr Clack’s overt conduct towards his employer at the time of his dismissal, including his language and behaviour towards his managing director, which might provide grounds for considering termination for misconduct. The fact that his unacceptable conduct might have been the result of the medical, emotional, or financial effects of his disease, does not require me to exclude his conduct from the circumstances of the hypothetical comparator.
  13. The second requirement of s.5(1) requires consideration of Mr Collins’ reasons for taking the challenged actions. This consideration is aided by s.10, which provided:
  14. However, this provision retains the focus of s.5(1) upon the real reasons for Mr Collins’ actions. It requires findings about ‘the discriminator’, and not about how a reasonable or other hypothetical employer would be motivated to act in the same circumstances. If, as the evidence suggests, Mr Collins might be prone to emotional, ill-considered, and unfair procedures in relation to the management of his employees, then I must take this into account when considering why he took the various actions of which Mr Clack now complains.
  15. In this respect, Mr Collins’ evidence of his reasons is not conclusive. The Court must attempt to look behind the stated reasons, whether given contemporaneously or with hindsight, to consider whether it can find, as a matter of fact, that Mr Collins’ actions were taken because, in part, Mr Clack had a disability of Type 1 diabetes. Moreover, it has been recognised that the disability might be an unconscious or unrecognised reason for the conduct. This was explained in an early judgment of the High Court in this area, Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, in the context of sex discrimination. Deane and Gaudron JJ said at 176:
  16. The description of the task of the Court as the discovery of “the true basis of an act or decision” was also adopted in the language of Dawson J in Banovic at 184. It is also reflected in the judgment of Gummow, Hayne and Heydon JJ in Purvis (supra):
  17. For reasons which I shall explain, it is very difficult on the evidence presented in this case, to discover Mr Collins’ real reasons for his behaviour towards Mr Clack leading to his dismissal on 1 or 2 March 2007. The evidence of Mr Clack is clouded by his perceptions of unfairness, and weakened by the absence of any contemporaneous records supporting his suspicions, and his poor recollections of detailed words and events. Mr Collins undoubtedly has an inflammatory personality, and it appears to me that all of his employees were at risk of peremptory and ill-considered responses to any perceived failings. There undoubtedly were significant management considerations which might have affected the future of Mr Clack’s position, regardless of his disability. However, these have been embellished in the evidence of Mr Collins and Mr Lowe in a manner which I have found unconvincing, even contrived. Their recollections of events are also unsatisfactory. In this situation, arriving at conclusions on how and why Mr Collins terminated Mr Clack’s employment opens up a sea of speculation, upon which I have travelled in many directions while considering the evidence in this case.
  18. At the end of the day, I have reminded myself that, although the findings required by s.5 must address imprecise facts by processes of inference, my findings about Mr Collins’ conduct must be arrived at to my satisfaction in favour of Mr Clack, before I can order him relief. Section 140(1) of the Evidence Act requires that I must be able to be satisfied as to proof “on the balance of probabilities”, and allows that the drawing of the requisite inferences at that standard may take into consideration the nature of the action, its subject matter, and the gravity of the allegations. As the judgment of Branson J in Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 explains, in discrimination cases these considerations carry differing implications for the drawing of adverse inferences. I have considered all the matters which she discussed, when deciding whether I am satisfied on the balance of probabilities that Mr Clack’s case has been made out in relation to the issues identified above.

Mr Clack’s evidence

  1. Mr Clack presented few contemporaneous documents in evidence, and had not made any contemporaneous records of relevant conversations and events. He called only one corroborative witness: Mr Quinn, who established the uncontroversial facts that he met with Mr Clack on 1 March 2007 “approximately after midday”, and that he confirmed this when Mr Collins later phoned him “because he [Mr Clack] is meant to be at another meeting and he is not answering my calls”, and that Mr Quinn then phoned Mr Clack to tell him of the call from Mr Collins.
  2. Mr Clack’s first written account of events was in his complaint to the Commission nearly one year later. As is illustrated by his account of his termination which I have extracted above, it was far from detailed in relation to times, places, and words spoken. His memories at that time appear pervaded by a sense of grievance, and his narrative reflected no objectivity in relation to his employer’s possible motivations when responding to the announcement of his disability and his subsequent conduct.
  3. A similar impression is left by his affidavit sworn on 9 March 2009. It provided some additional background in relation to his employment. It also attempted briefly to reconstruct words spoken by Mr Collins at the time of the diagnosis, in response to complaints about email access, concerning the new position, and at the time of the termination of his employment.
  4. Mr Clack claimed that the termination occurred entirely in one telephone conversation on Thursday 1 March 2007 “later that evening, after I had left the office and was driving home”. He said that Mr Collins accused him of “gross misconduct” because “I called your clients today. You failed to attend one of your client appointments”. When he refused to resign, Mr Collins told him “your position with Command is terminated, effective immediately”.
  5. Mr Clack said that this was preceded by an afternoon meeting on that day with Mr Collins in his office, after he had met Mr Quinn at Darlinghurst and also had “took this time to attend a short medical appointment with my GP”. He said that the meeting in Mr Collins’ office occurred “when I returned to the office, I was approached by Collins who requested that I attend to him in his office”, and that “I outlined to Collins the results of the various meetings throughout the day”. This included a telephone conversation with another client, Mr Razlog at Baulderstones, in which a morning meeting for that day had been re-scheduled, and “the client briefed me on his company’s current work load”.
  6. Mr Clack’s affidavit said that, after the telephone termination conversation, further telephone conversations with Mr Collins occurred on Friday 2 March 2007 and Saturday 3 March 2007, in which he requested written notice of termination. He now said that he received the written termination notice (extracted above) on 3 March 2007, and not weeks later. He denied that he had been “informed about the arrangements of” the meetings with Mr Collins which he was alleged in the letter not to have attended, and he denied the unparticularised allegations made in the letter.
  7. The affidavits of Mr Collins sworn on 22 June 2009 and of Mr Lowe sworn on 15 June 2009 contained extensive and consistent, often verbatim, accounts of conversations with Mr Clack, in which he had been warned about his performance in his sales manager position before and after he announced his diagnosis, in which his new position was discussed and agreed by Mr Clack, and in which he was asked, and failed, to attend meetings at 5.30pm on 1 March 2007 and 8.30am on 2 March 2007, to explain ‘lies’ given to Mr Collins about his client visits on 1 March 2007. Mr Lamb’s affidavit sworn on 24 June 2009 corroborated Mr Collins’ version of events on those days.
  8. A detailed description was given in the affidavits of Mr Collins and Mr Lamb of an incident in early December 2006, in which Mr Clack and Mr Collins had engaged in an emotional and mutually abusive telephone exchange, concerning the moving of Mr Clack’s office. These exchanges included Mr Clack being peremptorily sacked by Mr Collins, and then reinstated by Mr Collins on a later day. Mr Clack was alleged, in effect, to have been on notice as to his behaviour from that time. He was also alleged by Mr Lowe and Mr Collins to have been responsible for a serious decline in income in the Sydney office, and to have been told by them in meetings in late January and mid February 2007 that “we are not happy with your performance”, and to have been given this as a reason for the change in duties.
  9. In his affidavit in reply, and under cross-examination, Mr Clack denied most of the conversations recounted by the other witnesses. He admitted the gist of the events of early December 2006, but denied that he received any warnings. He denied any knowledge of Command’s adverse profit and loss accounts for 2006, that he was responsible for any decline in its income, and that anything was ever said to him critical of his work performance. He denied recollections of almost all the suggested conversations involving Mr Lowe.
  10. There was some common territory about Mr Clack’s various conversations with Mr Collins, but only at a very general level, including that Mr Clack had been told that his new duties would accommodate his disability, and that the telephone conversation in the evening of 1 March 2007 involved highly coloured and mutually abusive statements on the part of both men. The common territory allows me, at least, to find confidently that Mr Collins appeared to be incensed by a perception that he had been lied to by Mr Clack earlier that day, and that Mr Clack was incensed because Mr Collins had checked up on his movements by telephoning Mr Quinn and Mr Razlog.
  11. Mr Clack gave oral evidence in a concise, intelligent and very confident manner. However, he acknowledged one significant error in his account of events. This admission, with other indications in his evidence, confirmed an impression from his affidavit sworn in reply, that his memories of conversations during January and February 2007 were far from complete or reliable. Significantly, his admitted error in his affidavits concerned his interactions with Mr Collins and Mr Lowe when his diabetes was first diagnosed. Although at first he claimed a clear memory of speaking to Mr Collins on 19 January 2007 when he announced the news at the Command office, he later conceded that in fact Mr Collins was still overseas at that time, and that it was Mr Lowe who had initially received and responded to his announcement, by offering sympathy, informing the other managers, and making arrangements while Mr Clack took leave. Mr Clack explained this memory lapse on the basis that “I was very emotional that afternoon. I remember actually breaking down in the office at the time”. This state of mind is confirmed by other witnesses, and I accept it.
  12. However, I do not accept that his memory failings were as transient as Mr Clack claimed, and I consider that Mr Clack’s memory of other events may also be unreliable. I consider that the terseness of his affidavit’s narrative conceals an underlying uncertainty about many details of the relevant events. This led to shifts in his evidence in his affidavit in reply and during cross-examination, which appeared at times to adjust his previous narrative in the light of the evidence of other witnesses.
  13. My reservations about the reliability and extent of Mr Clack’s memories include his evidence concerning the significant events of 1 March 2007. His evidence appeared to shift or become vague as to the timing and content of his conversations with Mr Collins in his office during the afternoon and earlier, and as to other details. Ultimately, I understood him to accept that his reporting back to Mr Collins was probably a brief ‘round the door’ conversation when he returned to the Command office, and that he did not meet with Mr Collins at his request on that afternoon. As I shall explain, Mr Collins’ evidence about these events also suffers from defects, but it has some support in Mr Lamb’s evidence, and is aided by some notes which deserve some weight. I am inclined to prefer the version of events recorded in Mr Collins’ notes, where it cannot be reconciled to Mr Clack’s evidence.
  14. The memories of both men about telephone conversations during the afternoon and evening of 1 March 2007 are likely to have been coloured by their highly emotional states. It is understandable that they would have different recollections of what the other person said, and that they should both show some confusion about the sequence and timing of events. As Mr Clack said, the significant conversation in which he was either sacked or led to believe that this was inevitable, whatever its precise time, “was very, very heated and animated indeed”.
  15. Similar reservations arise from Mr Clack’s memories as to his telephone conversations with Mr Collins on the following day, 2 March 2007, where he admitted to significant uncertainty whether he had requested a notice of termination, and as to “who called who on that day”. I shall assess further below, what conclusions can be drawn from the evidence of both of the men about the events of those days.
  16. In summary, my general conclusion in relation to Mr Clack’s evidence is that his memories of details are unreliable in their reconstruction of many significant conversations and events. He has no contemporaneous records of himself or others, nor corroborative witnesses, establishing his version of events where it is denied by Mr Collins and his witnesses. I have not been satisfied to the requisite standard that some oral statements which he attributes to Mr Collins probably were made in the terms and manner alleged.

Mr Collins’ evidence

  1. The evidence in support of Mr Collins’ case was highly unsatisfactory in several respects. His 2009 affidavit contained reconstructed conversations involving him, Mr Lowe and Mr Clack during January and February 2007, which cross-examination showed were not founded upon any real memory of his, but which accepted a version ‘constructed’ by his solicitors from instructions apparently given by Mr Lowe. This version was included almost verbatim in both of their affidavits.
  2. Both their affidavits suffered from other defects, unconvincingly attempting to build a case against Mr Clack, in which he had a long history of unsatisfactory conduct, involving his repeatedly being unaccountably absent from the office, failing to observe office systems and procedures, failing to manage his staff, misrepresenting his sales results, failing to achieve his performance indicators, and being repeatedly warned about his work performance and personal conduct. Bulky exhibits to their affidavits were said to corroborate these things, but failed to do so in the manner suggested.
  3. The affidavits of Ms Downes and Mr Lamb suffered from similar vices. Their affidavits purported to provide corroboration of the allegations against Mr Clack and of Mr Collins’ evidence, but were substantially disclaimed during cross-examination. For example, Ms Downes’ affidavit supported the allegation that during 2006 Mr Clack had been directed by Mr Collins to report his daily activities to Ms Downes as his supervisor, and had failed to so. Yet Ms Downes, who was operations manager at the Sydney office, was adamant under cross-examination that “he didn’t report to me though. We met on a weekly basis. He reported directly to Mike [Collins]”, and that she was not managing his performance, nor on a day-to-day basis, and that she was only “his peer”. As I shall explain below, Mr Lamb’s cross-examination revealed him to have very imprecise memories of being in Mr Collins’ office during some of his exchanges or attempted exchanges with Mr Clack on 1 and 2 March 2007. The affidavit evidence of both of these witnesses was clearly demonstrated to be unreliable in significant respects.
  4. Mr Collins’ general presentation as a witness during cross-examination was problematic. Despite many reminders from me, and his apparent intelligence and experience as a businessman, he appeared incapable of accepting his responsibilities as a witness. He was often inattentive, he interrupted or obstructed counsel’s questioning, and he frequently evaded or prevaricated when responding. Many of his responses launched into point-taking or advocacy of the case against Mr Clack, or appeared more concerned to maintain consistency with his affidavit and with Mr Lowe’s evidence than to achieve any genuine recollection. This led to his giving unconvincing, contradictory and unreliable evidence on many matters. This was notable in relation to whether any criticism of Mr Clack’s past performance as sales manager was ever voiced to Mr Clack during January or February 2007 or earlier. These defects in his testimony appear on the transcript, and were manifest during the hearing.
  5. I would not, however, reject all of Mr Collins’ evidence entirely. I consider that most of his defects as a witness were unconscious, and reflected a pugnacious personality. I saw glimmers of truth at times. In relation to some matters, including the events on 1 and 2 March 2007, I consider that some of his evidence may better accord to the events than that of Mr Clack. There are also points of coincidence of his evidence with that of Mr Clack and with contemporaneous documents and uncontroversial events, which lend support to some of it. I am therefore left with a witness whose evidence should generally be regarded as unreliable, but should not be rejected totally.
  6. After attempting to assess Mr Collins’ personality and likely responses to the knowledge of Mr Clack’s disability, I am hesitant to draw the inference that his unsatisfactory evidence probably resulted from consciousness that an improper consideration had affected his actions leading up to the termination of Mr Clack’s employment. Although I have been unpersuaded to accept his reconstruction of his reasons for the termination, and have found much of his evidence of reconstructed conversations to be unreliable, and have criticised his behaviour in the witness box, there are several other equally possible reasons for these defects in his evidence. I am more inclined to attribute the elements of contrivance in his evidence to a consciousness that some of his actions might reflect poorly upon his management style and procedures, or to an exaggerated and emotional response to Mr Clack’s complaints, rather than a deliberate attempt to hide the fact that he had given weight to an unlawful and discriminatory consideration when taking the actions adverse to Mr Clack.
  7. In the light of my above discussion, I can now explain my conclusions about the four particular matters which Mr Clack alleges constituted unlawful discrimination in his employment.

The deduction of half days’ pay

  1. The evidence supporting this complaint was poorly identified during the hearing and in submissions, and I have difficulty giving the allegation any precision. Mr Clack clearly developed a grievance that, as a result of his previously taking recreation and other leave, he did not have entitlements to paid leave sufficient to cover the periods of leave he felt necessary to take in January and February 2007 after his diagnosis, and also to cover his on-going absences for further regular appointments in the early management of his diabetes.
  2. Mr Clack does not allege that he was refused permission to take whatever leave he felt necessary, and he attributes to Mr Collins the statement upon being told of the diagnosis: “I’m sorry mate. You can take as much time off as you need”. However, he presents a complaint in his affidavit:
  3. Mr Collins denied these conversations. He deposed:
  4. There is no evidence showing how a decision by Mr Collins concerning Mr Clack’s entitlements to remunerated or unremunerated sick leave was communicated to the Command accounting and personnel staff for their implementation. Mr Clack’s evidence did not persuade me that there was ever any incorrect calculation of his entitlements. There is no evidence that Mr Clack expressed a continuing concern that he was unfairly or improperly being penalised by Mr Collins or anyone else in Command. Rather, an apparently friendly email exchange with Mr Collins about Mr Clack’s taking leave without pay occurred between 20 and 22 February 2007, at the end of which Mr Collins said: “I will sort it out you must keep a detailed account of your attendance under the circumstances. Mate I hope you get on top of the illness” (see Ex.MAC1 pp.90-94). I am not satisfied that Mr Clack ever communicated any request that he should be attributed with shorter periods of sick leave for short medical appointments, or was in any respect unfavourably treated concerning his attendances at such appointments.
  5. I accept that the prospect of losing amounts of half days’ pay appears to have festered in Mr Clack’s mind after he had used up his leave entitlements, and that it surfaced dramatically in the events of 1 March 2007. It appears to me from the evidence of both Mr Clack and Mr Collins that Mr Clack’s desire to avoid any salary deduction led to his arranging his engagements on that day so that he could fit in a medical appointment in the afternoon unknown to any of the other staff at Command, and to Mr Collins in particular. It was this objective which, I find, led him to misrepresent his engagements and movements to Mr Collins – whether expressly or by deliberate omission.
  6. The exact details of his lack of candour in this respect are difficult to distil from the unreliable and contradictory evidence of both witnesses. It is common ground that the accusation made by Mr Collins on the telephone in the evening of 1 March 2007 was that he did not know where Mr Clack had been and who he had seen on that day, and that he believed that Mr Clack had lied about his movements. It is also common ground that Mr Clack did not deny keeping his medical attendance secret from Command, and that he sought to excuse himself from an admitted fault because he had made only a short visit to the doctor and he thought that he would lose half a days’ pay. According to Mr Collins’ note of the conversation, he told Mr Clack that he could have taken ‘flexi-time’ and shown this in a timesheet, implying that there was no excuse for dishonesty. Prima facie, it was this dispute about the nature and gravity of his conduct on 1 March 2007 which explains the immediate termination of Mr Clack’s employment. I shall consider below whether there were other reasons or underlying explanations also.
  7. When considering Mr Clack’s complaint concerning unpaid leave, I have above noted that the evidence failed to support Mr Clack’s suggestion that deductions were made from Mr Clack’s pay, whether before or after his last pay day, which were improperly calculated. Nor was there any reliable evidence to support Mr Clack’s suggestion that Mr Collins had given directions to his staff intended unfairly to disadvantage Mr Clack financially. The totality of the evidence leaves me far from persuaded that Mr Collins gave any direction, or otherwise aided and abetted any other agent of Command, to implement an inflexible policy of half day deductions for even short attendances by Mr Clack at medical appointments.
  8. I am unpersuaded by Mr Clack’s claims that he was ever ‘pressured’ to take a pay cut in conversations with Mr Collins. This is due to my general opinion of the unreliability of Mr Clack’s memories in relation to the conversations he has presented in his affidavit, and the lack of any corroboration of these allegations. It seems likely that there was a tightening of financial controls at Command during January and February 2007. Mention of this may have been made to Mr Clack by Mr Collins or Mr Lowe when referring to Mr Lowe’s general activities and the developing financial crisis facing the company, or in the course of the discussions about the new position presented to Mr Clack. These possibilities remain speculative in my mind. Considering all the evidence, I have not been persuaded on the balance of probabilities that any such conversations would have included ‘pressure’ on Mr Clack to accept remuneration lesser than that attaching to his position as NSW Sales Manager, whether for reasons related to his disability or otherwise.
  9. For the above reasons, the factual foundations for the allegations of unlawful discrimination in relation to the payment of Mr Clack’s remuneration are not established. I find it impossible and unnecessary to arrive at any conclusion whether, if any of the alleged conduct had been established, it would have treated Mr Clack less favourably than another employee in the same circumstances, nor whether it would have occurred because of his disability.

The ‘demotion’ to National Accounts Manager

  1. Mr Clack’s affidavit stated, as to this action of Mr Collins:
  2. Mr Collins and Mr Lowe gave more extensive descriptions of conversations between themselves and Mr Clack about this proposal. They denied that it caused any signs of dissent or upset from Mr Clack, or that it proposed unreasonable or unfavourable conditions in relation to his remuneration or reporting. Mr Collins maintained under cross-examination that the proposal was made at his suggestion, to meet what he perceived to be the interests of Mr Clack, and to relieve him from aspects of his current duties which might be onerous to someone coping with newly diagnosed diabetes. I was not persuaded that his oral evidence in this respect was untrue, notwithstanding that Mr Collins also became entangled in contradictory evidence concerning the existence of other reasons for the proposal. In particular, whether he or Mr Lowe intended to move Mr Clack to the new position because they were unhappy with his past performance as NSW Sales Manager, and told him so. For reasons which I have explained above, I consider that the duplicate evidence of Mr Lowe and Mr Collins to this effect is unreliable.
  3. The best evidence as to the proposal and how it was presented to Mr Clack, is in two emails which were sent by Mr Collins on 19 February 2007 to Mr Clack and to ‘all staff’. They do not give support to Mr Clack’s allegations of unlawful discrimination, but tend to support those parts of Mr Collins’ evidence which I accept. Mr Clack disputed that the staff email had, in fact, been sent or received by anyone at Command, and hinted at fabrication. However, I have found no reason not to accept the authenticity of the contemporaneous emails. They stated:
Darren, having spoke to Richard about your role and that it is based on National Account Management the question of allocation of time to other companies arose. To apportion your time to other companies in the Group I would like you to complete a weekly report that outlines the Companies you are talking to which state it applies to the length of time you spent on that Account. Which visits you have organised and which proposals you are working on and the status of that account and its potential. We need to allocate your costs across the whole Group.
Effectively you must look at your time as an accounts / solicitor does. You have 11 clients.
Mike
...
To: All Staff
Command,
As of today I will be taking over Darren’s position as NSW Sales Manager. Darren has recently become ill and cannot devote 100% of his time to the Job. In order to support his need to manage and get on top of his illness it has been decided that Darren will become National Accounts Manager of the Command Group. He will be reporting to myself and Ron Lowe. He will be working closely with all Directors and Team Managers in the business to identify and manage the growth of key accounts in the business on a national level.
If anyone would like to discuss this in more detail please come and see me.
Mike
  1. In the course of the hearing, Mr Clack developed his complaints about his proposed new position. He thought that it would lack the prestige of his former position, and that it carried a prospect of lower remuneration, since he would not receive the bonuses paid under his NSW Sales Manager contract. His counsel during cross-examination and in submissions sought to establish from these points that the proposal involved a ‘pretend’ position, which was demeaning for Mr Clack, and was designed to discourage or trap Mr Clack into resigning or being dismissed from his employment. In the alternative, it was contended that, even if the proposal was not part of a discriminatory scheme explaining Mr Clack’s subsequent termination, the terms of the proposal were in these respects ‘less favourable’ than his previous employment, and that Mr Clack was moved into the new position overtly because of Mr Clack’s disability. He submitted that a separate ground of unlawful discrimination was therefore established.
  2. I am unpersuaded by these submissions, and would not make the suggested findings. A significant difficulty facing Mr Clack in attempting to establish that the proposal included features disadvantaging him, is that its terms were still inchoate at the time of his dismissal. On his own evidence, as well as on the evidence of Mr Lowe and Mr Collins, the job specifications, remuneration package, reporting structure, and practical implementation of the proposal were all awaiting development. No written employment agreement had emerged, even in provisional draft. Mr Clack did not regard himself as yet having accepted any offer of a new position, and said: “I never actually took up any duties within that role. I carried on my same duties”.
  3. It is common ground that he was still being remunerated according to the terms of his NSW Sales Manager position at the time of his termination. He was unable to establish to my satisfaction that, in fact, he ever received a bonus arising from his performance as NSW Sales Manager. I would not reject the evidence of Mr Collins and Mr Lowe that they intended to build an equivalent incentive scheme into the new package, and to make some ‘interim’ arrangement for a bonus before the new package was finalised if this seemed appropriate. I am prepared to accept that Mr Clack would have preferred to try to keep performing his duties as NSW Sales Manager, and became unhappy about the proposal, but I am unpersuaded that Mr Collins and Mr Lowe did not intend to offer a ‘genuine’ position on equivalent levels of responsibility, prestige and remuneration.
  4. For of all these reasons, as well as my difficulty in extracting the precise terms of the preliminary negotiations about the new position from the unreliable evidence of the witnesses about their conversations, I am unpersuaded that the proposal carried with it any treatment of Mr Clack which was unfavourable to him so as to be a demotion or otherwise unfavourable to Mr Clack. If I consider Mr Clack in his position as NSW Sales Manager prior to his diagnosis as the ‘comparator’ under s.5(1) of the Disability Discrimination Act, then I am not satisfied that the requirements of this section are satisfied.
  5. Moreover, applying Purvis (supra), using Mr Clack in his pre-diagnosis circumstances as his own comparator may be a generous application of the comparison test, since I consider that the ‘same or not materially different’ circumstances of the hypothetical employee without diabetes should still be regarded as having the attributes which made it reasonable for Command to consider moving Mr Clack into a position better suited for the constraints on his time and capacities to perform his duties which had resulted, or were perceived by his managers to have resulted, from his medical condition. Mr Clack has certainly not established that the proposed new position involved harsher treatment than would be taken in relation to any other employee employed with the same perceived work constraints in the same circumstances as Mr Clack.
  6. This allegation of unlawful discrimination must therefore fail.

The hurtful statements

  1. I have above extracted the paragraphs from Mr Clack’s affidavit containing his evidence as to the second of the hurtful statements he alleges were made by Mr Collins, i.e. that “it’s not as if you’ve got cancer”.
  2. The first such statement is alleged to have been made in the following circumstances:
20. Following this conversation, I noted that Collins’ attitude and behavior toward me changed and that his attitude to me became cold. I also noted that he was less available to meet and did not return my telephone calls as readily.
  1. Both of these statements are denied by Mr Collins in the terms alleged. The allegations are uncorroborated, and are not supported by any obvious circumstance making it probable that Mr Collins would have made seriously hurtful comments to Mr Clack about his diabetes. There is other evidence showing that he expressed sympathy and support to Mr Clack in relation to his disability at other times. Mr Clack did not seek to challenge Mr Collins’ claims that he is generally a compassionate employer, who at times has tried to accommodate serious impairments in his employees.
  2. I accept that Mr Clack may genuinely have felt a change in Mr Collins’ attitude towards him during 2007, and that this became associated in his mind with Mr Clack’s endeavours to come to terms with his diabetes. However, as I shall discuss below, there were several other reasons which may explain why Mr Collins may have been losing sympathy with Mr Clack as his employee, and may have become concerned to monitor his performance more closely.
  3. Noting Mr Collins’ volatile personality exhibited in the witness box, it is possible that at times Mr Collins might have made insensitive and inappropriate personal remarks to his employees, but it is notable that on both men’s account of their highly coloured and abusive exchange on 1 March 2007 Mr Collins made no insulting reference, even obliquely, to Mr Clack’s medical condition.
  4. After considering all the evidence, and in view of my general reservations about the reliability of Mr Clack’s memory of conversations, I am not satisfied that the words attributed to Mr Collins, carrying the hurtful impacts which Mr Clack implies, were, on the balance of probabilities, made by Mr Collins to Mr Clack in the circumstances described in his affidavit.
  5. These allegations of unlawful discrimination therefore fail at their factual foundations.

The termination of employment

  1. I have above discussed some of the evidence about the circumstances of the termination of Mr Clack’s employment on 1 or 2 March 2007. I have extracted Mr Clack’s short narration of its circumstances, written about one year after it occurred. Essentially, Mr Clack maintained this version of events in his affidavit and under cross-examination.
  2. As I have described above, Mr Collins’ evidence is consistent with Mr Clack’s general description of the issues which gave rise to both men becoming highly indignant with each other’s actions on 1 March 2007, and then engaging in a heated exchange. I find that it involved inappropriate language and gratuitous insults from each of them, and that in it Mr Clack was peremptorily dismissed from his employment or was firmly led to believe that this was inevitable. I accept this general scenario from both their accounts, particularly since it is remarkably similar with the December 2006 incident, in which Mr Clack had previously been sacked by Mr Collins. The difference is that there is no evidence that, on this occasion, either of the men later contemplated remedying the breakdown in their employer-employee relationship, by apologising for their conduct and language and offering a conciliatory solution. The conversation marked an irretrievable breakdown in their relationship, which has led to the current litigation.
  3. I have above extracted the undated letter communicating or confirming the termination of employment. This was probably drafted by Mr Lowe in consultations with Mr Collins on Friday 2 March 2007 or Saturday 3 March 2007, and was immediately conveyed to Mr Clack. It therefore presents a roughly contemporaneous document. However, its contents need to be treated with caution, since, in my opinion, it already shows signs of attempts by Mr Lowe and Mr Collins to embellish Mr Collins’ actions and conversations on 1 March 2007 with a veneer of procedural fairness and additional substance. Their efforts have culminated in the exaggerated and unreliable evidence presented by them against Mr Clack in the present case. The unreliable rationalisation of events is illustrated by a concluding paragraph in Mr Collins’ affidavit, paragraph 62, which includes in a list of “my reasons for terminating Darren” some matters which had never been the subject of serious complaint prior to 1 March 2007, and other matters which are founded upon perceived evidence of misconduct or dereliction of duties which only came to light after that date.
  4. The termination letter appears in the word “confirm” to support Mr Clack’s claims that Mr Collins previously conveyed the termination of his employment orally. It appears to confirm that the immediate cause of the termination related to complaints about Mr Clark’s activities on 1 March 2007. It does, however, give the only particularised misconduct as a failure by Mr Clack “to follow reasonable directions to attend a meeting ... at our office” at 5.30pm on 1 March 2007, and “failure to attend the second arranged meeting this morning at 8.30pm (sic) in order to explain your conduct in relation to an incident which occurred yesterday”. Mr Clack maintains that he was never told any such ‘arrangements’ whether formally or informally. This gives rise to yet another area of factual controversy which I have found difficult to resolve.
  5. On Mr Collins’ evidence, if any ‘directions’ to attend meetings were actually given, then they were given orally in the course of Mr Collins conversations with Mr Clack on 1 March 2007. Mr Collins’ affidavit contains an elaborate reconstruction of these conversations, to show that, after checking Mr Clack’s movements by telephoning Mr Quinn and Mr Razlog, he telephoned Mr Clack in his office at about 5.30pm and asked him to come down to his office immediately to explain his actions. Mr Clack did not attend, and Mr Collins then telephoned him at about 6.45pm on his mobile phone, and put his concerns to Mr Clack in the acrimonious conversation I have described above. An affidavit by Mr Lamb was sworn, corroborating the contents of both these conversations.
  6. According to Mr Collins’ account of the acrimonious conversation on 1 March 2007, he directed Mr Clack several times to attend another meeting at 8.30am the next day, including by telling him:
  7. For reasons given above, I have approached these reconstructed conversations in Mr Collins’ affidavit with considerable reservations, in relation to both timing and contents. My reservations about whether Mr Clack was, in fact, directed to attend meetings, were supported during Mr Lamb’s cross-examination, when considerable doubts emerged as to his actual memories of what he had witnessed on 1 and 2 March 2007.
  8. I am prepared to accept only that Mr Lamb was called down to Mr Collins’ office in the late afternoon to witness a meeting between Mr Collins and Mr Clack, in which Mr Collins intended to discuss his serious concerns with Mr Clack. Whether that ‘appointment’ with Mr Clack was made by Mr Collins telephoning Mr Clack, or in a heated call from Mr Clack complaining about Mr Collins having telephoned Mr Quinn, is obscure to me. The latter would seem to be suggested by the last note appearing in Mr Collins’ diary on 1 March 2007. It records:

I am inclined to accept that note, although other notations in the diary need to be treated with caution, since they appear to have been inserted at a later date and may contain substantial elements of reconstruction. I consider that the note tends to confirm that Mr Clack did, in fact, fail to attend a meeting in Mr Collins’ office at 5.30pm, which he was given an informal direction to attend while he was still in the Command building.

  1. Mr Lamb’s recollections of overhearing the later acrimonious telephone conversation with Mr Clack on 1 March 2007 were shown to be entirely unreliable. In my opinion, his evidence about this probably confuses things he was told by Mr Collins the following morning, or which he overheard on ‘speaker phone’ when he was again summoned down to Mr Collins’ office as a witness, later in the morning of 2 March 2007. Under cross-examination, Mr Collins appeared to suggest that the acrimonious telephone conversation on 1 March 2007 occurred after he too had left the office, and that he had made several further attempts to speak to Mr Clack by mobile phone. If so, Mr Lamb could not have overheard Mr Collins requesting Mr Clack’s attendance in his office at 8.30am the next day.
  2. Yet Mr Lamb does have a firm recollection of waiting in Mr Collins’ office at that time the next morning, and leaving because Mr Clack did not attend. He then recalls being called down to hear a later telephone exchange with Mr Clack. I am inclined to find that Mr Lamb was probably told the previous evening that Mr Collins intended to try to arrange another meeting with Mr Clack, which he wanted Mr Lamb to witness, and that Mr Collins told Mr Lamb to attend at 8.30am in anticipation that this appointment would be communicated by him to Mr Clack later that evening.
  3. Whether, in fact, Mr Collins did later direct Mr Clack to attend his office the next day at 8.30am, is therefore not supported by any clearly reliable evidence. I have decided that it is quite possible that Mr Collins might have told Mr Clack to attend in the course of the acrimonious telephone conversation, although I doubt that this was said repeatedly, in the measured language which Mr Collins recounts in his affidavit. I am inclined to think that their exchanges probably did include the following exchange recorded by Mr Collins in his diary notes:
  4. My above findings, and my earlier discussion of the witnesses and of the evidence concerning the activities of Mr Clack and Mr Collins leading up to the critical telephone conversation on 1 March 2007, have explained why I have not been able to accept unreservedly all the evidence of either men, nor make firm findings as to many aspects of the relevant events and conversations. This includes findings on the balance of probabilities whether, in fact, Mr Collins objectively had good grounds for believing that Mr Clack had exhibited gross misconduct by lying to his managing director about his work activities, and by failing to attend meetings where his conduct would be discussed. However, my tentative conclusions about their exchanges on 1 March 2007 do not allow me to find on the balance of probabilities that Mr Collins did not have these grounds for termination. Nor would I conclude that Mr Collins did not genuinely believe at the time when he orally terminated Mr Clack’s employment, that these grounds were alone sufficient to justify such an action.
  5. On this basis, and even on Mr Clack’s account of his termination considered alone, his disability played no part in the overt reasons for his dismissal, except by providing background circumstances. Unless Mr Collins contrived his indignation about a perception of serious dishonesty and defiance by Mr Clack, and did not genuinely believe that he had detected conduct amounting to gross misconduct justifying summary dismissal, it becomes most difficult for me to be persuaded on the balance of probabilities that either of the requirements of s.5(1) have been satisfied. However, I have not been persuaded on the balance of probabilities to find that Mr Collins’ stated concerns on 1 March 2007 were a sham, cloaking his true and unstated reasons.
  6. Even if I could be persuaded that Mr Clack’s disability was an unspoken or unconscious additional reason for his termination, he would also need to persuade me that another employee would not have been peremptorily dismissed by Mr Collins in the same or not materially different circumstances. However, on my assessment of Mr Collins’ personality and management style, it seems quite possible in my mind that he would summarily dismiss an employee, with or without a disability, in the heat of a mutually abusive phone conversation about the employee’s perceived shortcomings, even though this might appear to an objective observer to involve procedural unfairness and unsatisfactory personnel management.
  7. When I hypothesise as to possible unspoken or unconscious reasons for the termination of Mr Clack’s employment on 1 March 2007, the evidence opens up a very wide territory of possibly underlying influences on Mr Collins’ general attitudes about continuing Mr Clack’s employment with Command. No hypothesis satisfies me on the balance of probabilities. Given Mr Collins’ emotional state on 1 March 2007, I have difficulty concluding that it is likely that he would have been materially influenced by any of the possible unspoken considerations. Moreover, Mr Clack’s disability was but one of several equally possible influences on Mr Collins’ attitudes towards Mr Clack at the time. Other possible influences, unrelated to his disability, include Mr Clack’s past behaviour in December 2006 and at other times, and Mr Collins’ developing doubts about Mr Clack’s past contribution to his business. These provide equally possible unspoken reasons which might have been influential.
  8. At the end of the day, I have not been satisfied on the balance of probabilities that any unspoken consideration of Mr Clack’s disability, provided separately or cumulatively a part of the explanation for Mr Clack being dismissed by Mr Collins in the circumstances in which it happened. I am therefore not satisfied that his dismissal occurred ‘because of’ his disability within the terms of s.5(1) of the Disability Discrimination Act.
  9. In particular, I have not accepted Mr Clack’s contention that Mr Collins was implementing a scheme to effect his removal, which had included harassing him or moving him into a ‘pretend’ position and then looking for any excuse arising from his responses to that move. There is no direct evidence supporting the existence of such a scheme, and the circumstantial evidence leaves the existence of such a scheme too speculative to support the drawing of inferences on the balance of probabilities. As was pointed out by Mr Collins, his moving Mr Clack into another position might appear to have been unnecessary if he had resolved to look for a reason to sack him, since excuses to terminate his services could have equally been found in Mr Clack’s performance as NSW Sales Manager. Particularly, since Mr Lowe, as I at least accept, had given Mr Collins advice to dispense with Mr Clack’s services as a result of his assessment of Mr Clack’s sales results, and Mr Collins appears to have rejected that advice.
  10. The possibility of a Machiavellian design by Mr Lowe and Mr Collins to remove Mr Clack because of his disability, and without revealing this as a reason, is a possibility which is raised by the evidence and the manner in which Mr Collins has defended the proceedings, but it has not become a probability upon my assessment of the evidence.
  11. For all the above reasons, I have therefore not been satisfied that Mr Clack has established this ground of disability discrimination.

Harassment

  1. At the relevant time, and currently, s.35 provided:
  2. The written submissions of Mr Clack’s counsel did not address the meaning of these provisions, nor their application to his client’s case. In his oral submissions, he broadly submitted that the same actions of Mr Collins which were relied upon as unlawful discrimination under s.15 were also in breach of s.35. I was left unclear how his reliance upon s.35 could survive, in the event that I was not satisfied as to any unlawful discrimination under s.15.
  3. Counsel for Mr Collins provided brief written submissions addressing the effect of s.35 and its application to Mr Clack’s grievances. These pointed out that the jurisprudence on s.35 is much less developed than in relation to s.5 in its application to s.15 and other types of unlawful discrimination, although counsel cited Penhall-Jones v State of NSW (No.2) [2008] FMCA 832 at [39]. The concept of ‘harassment’ under the Act is undefined, as is the nature of the connection to disability which is encompassed by the phrase ‘in relation to’ the disability. Both are terms of potentially very broad meaning, but there are possible arguments that their application can be focused by reference to the statutory context and policies.
  4. I have not found it necessary to venture into the construction of s.35 in the present case, because I have concluded that my above findings about unlawful discrimination in relation to the four matters relied upon by Mr Clack, also answer his complaints when addressed as allegations of breach of s.35(1) or (2), on even their broadest construction.
  5. As I have found, I have not been satisfied as to the factual foundations for Mr Clack’s complaints concerning a direction or policy of unreasonably deducting leave without pay from his salary, and concerning two hurtful statements about his disability. For the same reasons, I would not find these allegations to have established a breach of s.35 on the balance of probabilities.
  6. Mr Clack’s complaints that his ‘demotion’ involved unlawful discrimination have failed because he did not persuade me that, in fact, the proposal carried any material detriment in his employment. I also doubted whether it constituted ‘less favourable’ treatment, and was therefore discriminatory within s.5. For the reasons which I have given when explaining these conclusions, I am not persuaded that any of Mr Collins’ actions in relation to the proposed new position of National Accounts Manager can be characterised as ‘harassment’, on any appropriate meaning of that term. This is particularly so, where I have been inclined to accept that the proposal was put to Mr Clack by Mr Collins, and was intended by Mr Collins, to accommodate difficulties which Mr Clack was perceived to have faced when coping with his discovery that he suffered from Type 1 diabetes. Certainly, in the absence of my being positively satisfied that the proposal was not so motivated, I am unable to characterise its presentation to Mr Clack as being harassment.
  7. The termination of Mr Clack’s employment might fit within a broad concept of ‘harassing’ under s.35, assuming that the verb can apply to the bare circumstance of losing employment, even in the absence of an adverse finding as to a discriminatory motive or reason for the termination. However, in my opinion, the termination of Mr Clack’s employment cannot satisfy the connective phrase of “in relation to the disability”, in the face of my failure to be satisfied that the termination occurred because of the disability, including as a subordinate or unspoken reason for the termination. Thus, if it involved harassment, then I am not satisfied that it was unlawful under s.35.
  8. I therefore do not consider that any of Mr Clack’s allegations of breach of s.35 have been made out.
  9. The consequence of all my above reasoning is that the application should be dismissed as against both respondents. I shall hear the parties further in relation to costs orders.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Smith FM


Associate: Lilian Khaw


Date: 8 February 2010

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