Carle v Penrith Rugby League Club Limited [2001] NSWADT 29 (21 February 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Carle -v- Penrith Rugby League Club Limited [2001] NSWADT 29

PARTIES: APPLICANT

Marie Carle

RESPONDENT

Penrith Rugby League Club Limited

FILE NUMBERS: 001020

HEARING DATES: 12/12/2000

13/12/2000

14/12/2000

SUBMISSIONS CLOSED: 14/12/2000

DECISION DATE: 21/02/2001

BEFORE: Bartley R - Judicial MemberSilva A - MemberMooney L - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED:

APPLICATION: Disability Discrimination - In work

Victimisation

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

A Britt, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

J Murphy, barrister

ORDERS: 1. The Tribunal directs the Respondent to pay to the Applicant the sum of $10,274.00 by way of compensation

2. No order as to costs.

Reasons for Decision:

Reasons for Decision

1 The Complainant commenced employment as a casual security officer at the Penrith Rugby Leagues Club in October 1989.

2 On 5.11.97 she lodged a complaint of disability Discrimination with the Anti-Discrimination Board against the Respondent claiming that she had been refused a permanent part-time security officer's position on the basis of the fact she had asthma.

3 On 16 December 1997 the Board received a further complaint in which the complainant stated her hours of work as a casual security officer with the Respondent had been reduced after she had complained about not getting the permanent part time security officer position.

4 On 28 June 1999 she made a further complaint of disability discrimination in which she said she was told to wear an earpiece at work or she would be taken off security work even though she had a medical certificate stating that she could not wear an earpiece due to recurrent ear inflammation.

5 On 14 September 1999 she lodged a further complaint that she was in fact taken off security work and placed on the sign-in desk because she could not wear an earpiece.

6 Investigation of the complaints was not commenced by the Anti-Discrimination Board until 17 September 1999 when it wrote to the Respondent. This was the first the Respondent knew of these Complaints.

7 All of the Complaints were referred to the Administrative Decisions Tribunal (Equal Opportunity Division) by the President of the Anti-Discrimination Board on 12 March 2000.

8 The Hearing of the dispute between the parties commenced on 12 December 2000 when Mr A Britt appeared for the Complainant and Mr. J Murphy appeared for the Respondent.

9 Mr. Britt advised the Tribunal that the Complaint of 16 December 1997 (second complaint) was not being relied upon by the Complainant. Further that the Complaints of 28 June 1999 and 14 September 1999 related essentially to the one issue.

10 In response to a question from the Tribunal he agreed the Tribunal was dealing with two complaints (1) the issues raised by the complaint of 5 November 1997 and (2) the issues raised by the complaints of 28 June 1999 and 14 September l999.

11 There was no dispute between the parties that over the relevant period the Complainant was suffering from Asthma and that it was a disability within the terms of the Act.

Complaint of the 5 November 1997

12 The Leagues Club employed approximately 50 security staff. They consisted of three categories of security officers- full time permanent, permanent part-time, and casual employees.

13 There were six or seven permanent full time security officers; six or seven permanent part time security officers and the balance were casuals. There was no such category as permanent casuals.

14 Prior to April 1997 there was no advertising of vacancies for permanent staff. A number of security supervisors and Mr. Van Zwieten, the Director of Security and Surveillance at the Penrith Leagues Club, would discuss the number of positions there were available amongst themselves and who they thought should fill those positions. They would then make an offer to those particular employees of the vacant position or positions.

15 In April 1997 the system changed to one of advertisement so that way everybody that was interested would be able to apply for the advertised vacant position.

16 The Respondent decided to advertise several security officer positions at that time, and they included the surveillance room position, permanent full-time security officer positions and part time permanent security officer positions.

17 The Complainant applied for and was interviewed for one of the permanent part-time positions.

18 The complainant stated she was interviewed by a committee which included Mr.Kolkman.

19 Following the interview the Complainant states that she was told by Mr. Kolkman that she was successful in her application for a 25 hour position which she accepted and he told her she would start in a couple of weeks.

20 Mr. Kolkman in evidence said his affidavit stated he interviewed the Complainant for the surveillance room position and that would be correct but that he could not recall interviewing anyone for a permanent part time security position in April/May. He said he could not recall the conversation with the complainant , and he said he would not have told her she was successful in a position as it was not his role, and it would not have been his practice to do that.

21 It would have been difficult for Mr. Kolkman to recall such a conversation , having regard to the long delay in the matter being brought to his attention and we prefer the evidence of the Complainant to the evidence of Mr. Kolkman.

22 The Complainant said on 31 May 1997 she had the following conversation with Mr. Van Zweiten, when she said: "What is going on?" He replied "Didn't Rob Watton speak to you?" She said "Everyone is giving me the run around, so I've come to you directly to find out what is going on. Do I have the position or not?" He said "No you don't have the job because of your disability, I did not mean disability I mean your condition". She said "I never had asthma until I worked in the disco." He said "that's why you haven't got the job because you cannot work in the disco".

23 Mr. Van Zweiten denied the conversation as deposed to by the complainant. He said he was asked by Ms Carle on a date he does not recall why she was not successful in obtaining a permanent part time security officers position and he said " You were not successful because of your restrictions. We need our part-timers to be able to work in all areas". In cross-examination he said he did not consider the fact the Complainant had asthma a disability but a restriction.

24 The Complainant said later she was told by Debra Schranzer, Corporate Resources Duty Manager for the Penrith Leagues Club Ltd. "You cannot have the position because you cannot work in the disco area and you are supposed to be available at all times to work in any section of the club".

25 Ms Schranzer in her affidavit denied the words of the conversation attributed to her by the Complainant . In cross- examination she said " That's not what I recall it as being. I am not sure whether I added disco but I could have ".

26 In her affidavit she said " I was directly involved in deciding whether or not Ms Carle would be appointed to a permanent part-time security officer's position. Ms. Carle's work-restriction meant that she could not be considered for the position as she was not available to work in all areas of the Club."

27 The Tribunal accepts the evidence of the complainant in respect of these conversations. The Tribunal finds that the Complainant was not given the position she sought because of her disability, namely , asthma.

28 The Tribunal finds there was direct discrimination under section 49B(1)(a) as the Complainant was treated less favourably than a person without her disability.

29 She was discriminated against in the terms of s 49D (2)(a) and (b) and the defence under s 49D (4) does not apply.

30 The Complaint is proved.

Complaints of 28 June 1999 and 14 September 1999

31 Towards the end of 1998 Debra Schranzer, Corporate Resources Duty Manager for the Penrith Leagues Club ("the Respondent") informed the security staff that the Club was trying out the use of security earpieces. The Complainant said she told Ms Schranzer that she could not wear the earpiece because she had got an ear infection. She said Ms Schranzer informed her that she had to wear an earpiece or bring a doctor's certificate. She said she wore the earpiece but got an infection. She then got a Doctor's certificate stating she could not wear an earpiece due to the recurrent ear inflammation.

32 On Friday 16 July 1999 the Complainant was transferred into the sign-in desk.

33 Security personnel regularly fill this position.

34 Mr Van Zwieten gave evidence concerning the requirement to wear earpieces which we accept. The wearing of earpieces was introduced to the Club with the aim of improving professionalism in operations, and more specifically to reduce exposure to risks and increase employee safety in the handling of security incidents on the premises.

35 The requirement to wear a covert earpiece on every shift was communicated to security personnel via memorandums on the team's notice boards and articles in the monthly Security newsletter mailed to employee's homes.

36 Having regard to the noise from the poker machines and people talking there is a high level of noise in various areas of the Club, and as a result hearing is difficult. An earpiece is preferable to a radio from a safety and risk management point of view. Without the earpiece a risk would be run of not hearing messages and it important that urgent calls for security are not missed. . In addition it ensures privacy as to what is happening from a security point of view. Patrons cannot listen in to security calls, which they can do if an earpiece is not used.

37 Debra Schranzer said the Complainant was given an opportunity to try out different earpieces but declined. Mr. Van Zwieten gave similar evidence. The Complainant disputes this evidence. In this regard we accept the evidence of the respondent's witnesses.

38 The onus of proving the facts that support the Complaint of the Complainant that the Club has discriminated against her in this matter lies on the Complainant and she has not, on the facts, discharged that onus.

Orders

39 The Tribunal has carefully considered the orders the Complainant wishes to be made in the event of finding one or both of the complaints proved.

40 As indicated the Tribunal finds the Complaint of 5 November 1997 proved and the complaints of 28 June and 14 September 1999 not proved.

41 The Tribunal is of the view it is not appropriate to direct the Club to appoint the Complainant to a permanent part-time position of security officer when she is not able to wear an earpiece.

42 The Tribunal has been advised the Complainant is still employed by the Respondent on a casual basis. Under those circumstances there is no need for any order by the Tribunal, as we do not consider it appropriate to change the present arrangement.

43 It is noted that the Complainant has now offered to trial the earpieces that can be provided and no doubt if she is satisfied with one of them this would enable the Respondent to reconsider its position about appointing the complainant to a permanent part-time security officer's position.

Compensation

44 The next thing to be considered is whether an order should be made for the Respondent to pay to the Complainant damages by way of compensation for any loss or damage suffered because of the Respondent's conduct.

45 The Tribunal has found that the Respondent's decision in April/May 1997 not to make the Complainant a permanent part-time employee was direct discrimination which deprived her of the benefits of permanency, including a fixed 25 hours of work per week. Accordingly, the Complainant is entitled to be compensated for the loss of the income that she would have received had she been given the permanent position for which she applied.

46 The Complainant provided the Tribunal with a document, namely Appendix 4 to exhibit 2, quantifying the Complainant's claim for economic loss for the period from June 1997 to the date of the hearing (approximately) being a total sum of $20,445.57.

47 The Complainant attempted to argue that the amount of economic loss would not be affected by the success or otherwise of the second complaint of discrimination in relation to the earpieces. However, the Tribunal is of the view that the Complainant's claim for economic loss cannot be maintained beyond the date on which she supplied the medical certificate stating she was unable to wear an earpiece, namely 13 October, 1998.

48 Having found on the basis of the evidence of Ms Schranzer that earpieces became compulsory for permanent security officers in July 1998, the Tribunal considers that the medical restriction placed on the Complainant in October 1998 meant she became incapable of fulfilling the requirements of the position from that time. The Complainant's counsel conceded that a number of things could follow from such a finding:

"One of them of course is that the complainant would have been transferred to the door reception area and would have been, would have retained her part time employment status and would have worked 25 hours per week. In those circumstances the same loss would be suffered. I suppose another permutation sir is that she would have been terminated in July 1999 and there's no evidence as to whether that would or would not have occurred but I suppose another permutation sir is that she goes to a sign in desk but is offered a casual position, a less sum of hours." [Transcript of 14/12/00, page 17, lines 30 - 40.]

Bearing in mind the evidence that the Applicant had successfully obtained other casual employment to supplement her hours of work the Tribunal considers the further possibility she may have resigned from the Respondent's employment to obtain a position that did not require her to wear an earpiece.

49 It is clearly not possible to say with any certainty what may have flowed from the inability of the Complainant to continue as a permanent security officer after 13 October 1998 and in those circumstances the Tribunal is not able to award damages beyond that date. The Tribunal calculates the Complainant's loss of income for the pay periods 3 June 1997 to 20 October 1998, based on the document placed in evidence by the Complainant to be the sum of $9,274.31.

50 Compensation was also sought by the Complainant for distress, suffering and hurt feelings. The Tribunal has only the evidence of the complainant herself on which to assess this claim. Most of this evidence lies in the Complainant's statement, a considerable proportion of which relates to her complaint of victimisation, which was then withdrawn at the outset of the hearing.

51 The Tribunal has also taken into account the evidence that the Respondent had made efforts to accommodate to the Complainant's restriction and had offered her a position in surveillance which she declined. In the circumstances the Tribunal considers an award of $1,000 to be appropriate for general damages.

52 The Tribunal directs the Respondent to pay to the Complainant the sum of $10,274.00 by way of compensation.

53 No order as to costs.