Crewdson v Director General, Department of Community Services and Anor [2008] NSWADT 279 (13 October 2008)

Last Updated: 15 October 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Crewdson v Director General, Department of Community Services and Anor [2008] NSWADT 279


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Gerard Crewdson

RESPONDENT
Director General, Department of Community Services



FILE NUMBERS:
011087

HEARING DATES:
13 September 2007, 27 September 2007

SUBMISSIONS CLOSED:
7 March 2008



DATE OF DECISION:
13 October 2008

BEFORE:
Hennessy N - Magistrate (Deputy President)Nemeth de Bikal L - Non-Judicial MemberGill M - Non-Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Disability Discrimination Act 1992 (Cth)
Public Sector Management (General) Regulation 1996
Public Sector Management Act 1988

CASES CITED:
Crewdson v Industrial Relations Commission of NSW & Ors [2007] NSWCA 178 (25 July 2007)
Crewdson v Department of Community Services & Anor [2002] NSWIRComm 121
Crewdson v Niland & Ors [2001] NSWADT 87
Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5
Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481
Re Williamson and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467
Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65
Wilde v University of Sydney [2004] NSWADTAP 32
Commissioner of Corrective Services v Maxwell & Anor [2001] NSWADTAP 21
Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26
Dutt v Central Area Health Service [2002] NSWADT 133
Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92–808
Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42
Bogie v The University of Western Sydney (1990) EOC 92–313
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22
Director General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6

TEXTS CITED:


APPLICATION:


MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENTS
E Brus, counsel


ORDERS:
1. Mr Newbery is removed as a respondent
2. The application for summary dismissal is rejected
3. The complaint of disability discrimination is substantiated
4. The first respondent is ordered to pay the applicant damages in the sum of $40,000
5. The first respondent is not to refuse to offer the applicant employment on the same ground in the future
6. The complaint of victimisation is dismissed.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 Employment as a carer. Mr Crewdson was employed by the Director General, Department of Community Services (the Department) as a Residential Care Assistant from 7 September 1990 to 2 October 1998. His job was to care for people with developmental disabilities living in a group home. A series of incidents in the second half of 1997 led to Mr Crewdson being referred to HealthQuest for an assessment of his fitness to continue to work. HealthQuest provides occupational health services to both government and private sector employees. Two of the services provided are "fitness to continue" assessments and "pre-employment" assessments. He attended an appointment with a psychiatrist, Dr Roberts. Her opinion was that Mr Crewdson may have been suffering from significant mental illness. Mr Crewdson stopped working in the group home and his employment was eventually terminated.

2 New applications for employment. About a year later, during the period from September to December 1999, Mr Crewdson re-applied for several positions with the Department. Each of his applications was unsuccessful. His first application was for the position of Residential Support Worker with the Cumberland Prospect Area. Although he applied unsuccessfully for four other positions with the Department, the evidence in relation to those applications is not as favourable to Mr Crewdson as it is in relation to the first application. Consequently, we have focused on the first application in these reasons.

3 First complaint. Mr Crewdson alleges that by refusing to re-employ him the Department has discriminated against him on the ground of a disability. The disability is not a current disability, but a disability (mental illness) that the Department thought Mr Crewdson had in the past: Anti-Discrimination Act 1977 (AD Act), s 49D(1). He says that one of the reasons he was not offered employment was that the selection panel was told that he needed a ‘clearance’ from HealthQuest before being re-employed.

4 Second complaint. The second complaint is a complaint of victimisation against Ms Gillett, the former House Manager of the home in which Mr Crewdson had been employed: AD Act, s 50. This complaint is that Ms Gillett gave Mr Crewdson a very negative reference in relation to his application for re-employment. He says that the reason she did so was that he had previously complained about the discriminatory treatment of residents in the group home in which he had been working. He seeks the maximum amount of damages - $40,000 - for each of the two complaints.

5 Respondents’ response. The Department and Ms Gillett deny that they have discriminated against or victimised Mr Crewdson in breach of the AD Act. They have applied for the complaints to be summarily dismissed because they are vexatious. Alternatively, the Department says that Mr Crewdson knew when he applied for the position that he needed a clearance from HealthQuest before he could be re-employed. In its view, his refusal to submit to a psychiatric assessment was the main reason for his application being unsuccessful. In relation to the victimisation complaint, Ms Gillett says that the negative reference she gave Mr Crewdson was a truthful response to an inquiry about his suitability for employment. It was not done to punish him for making complaints.

6 Identity of respondents. It is unlawful for "an employer" to discriminate against a person on the ground of disability: AD Act, s 49D. A reference to an employer in relation to a Department, is a reference to the relevant Department Head, that is, the Director General of the Department of Community Services: AD Act, s 4B(1). The Department did not dispute that the Director General is vicariously liable for the unlawful acts of his or her employees: AD Act, s 53(1). Mr Crewdson initially identified a Human Resources Manager, Mr Newbery, as a separate respondent to the first complaint, but the Tribunal removed him as a party because an individual employee cannot be personally liable for an act of disability discrimination. In this case the Department conceded that, as his employer, it is vicariously liable for any unlawful acts of Mr Newbery: AD Act, s 4B(2) and s 53. Because the victimisation provision (s 50) makes it unlawful for "a person", rather than an employer, to do certain things, Ms Gillett will be personally liable if she has breached that provision.

7 Delay. The complaints were referred to the Tribunal by the President of the Anti-Discrimination Board on 13 December 2001. The main reason it has taken so long to finalise Mr Crewdson’s complaints is that the Tribunal agreed to put the complaints on hold until proceedings against the Department in the Industrial Relations Commission about Mr Crewdson’s referral to HealthQuest and the Department’s subsequent treatment of him had been resolved. Those proceedings were finally resolved following a decision of the Court of Appeal in 2007: Crewdson v Industrial Relations Commission of NSW & Ors [2007] NSWCA 178 (25 July 2007).

Initial complaints of discrimination and victimisation

8 In December 1997, following his referral to HealthQuest, Mr Crewdson lodged a complaint with the President of the Anti-Discrimination Board against the Department and HealthQuest alleging unlawful discrimination on the ground of disability. Those complaints were referred to the Equal Opportunity Tribunal, the predecessor to the Equal Opportunity Division of this Tribunal. In April 1998 Mr Crewdson added complaints of victimisation. Settlement discussions ensued and a Deed of Release was signed on 6 October 1998. As part of the settlement the Department agreed to provide Mr Crewdson with a statement of satisfactory service. The terms of that statement, signed by Mr Newbery, the Department’s Assistant Director Corporate Human Resources, were as follows:

This is to certify that Gerard Michael Crewdson was employed from 7 September 1990 to 2 October 1998 in the capacity of Residential Care Assistant/Worker. Mr Crewdson was a satisfactory employee who resigned of his own accord.

9 The Deed also obliged Mr Crewdson to release the Department from all actions which he had or may have had in the future against them arising from or in any way related to his employment and/or the health assessment and noted Mr Crewdson’s undertaking that he would resign from his position from 2 October 1998. He did not submit a letter of resignation and maintains that his employment was never validly terminated. On 21 January 1999, Mr Crewdson lodged further complaints of victimisation with the Anti-Discrimination Board. After referral, the Tribunal dismissed those complaints for want of prosecution: Crewdson v Niland & Ors [2001] NSWADT 87. The Appeal Panel dismissed Mr Crewdson’s appeal against that decision: Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5. Contrary to his submissions, Mr Crewdson cannot re-agitate any of the issues determined in previous proceedings before this Tribunal. The principles of res judicata and issue estoppel prevent him from doing so.

Background to Mr Crewdson’s dispute with the Department

10 Application to IRC. In order to understand and determine the current complaints it is necessary to outline Mr Crewdson’s previous grievances with the Department and their outcomes. In May 2001 Mr Crewdson applied to the Industrial Relations Commission for several declarations, including that the referral to HealthQuest was invalid and that the terms of the Deed of Release were void. Following numerous interlocutory proceedings, Boland J delivered a decision in 2005: Crewdson v New South Wales Department of Community Services & Ors (No 11) [2005] NSWIRComm 308. We refer to this decision as Crewdson (No 11).

11 Status of IRC proceedings. The parties agreed that rather than re-hear the evidence presented in the IRC proceedings, this Tribunal should rely on findings of fact made by Boland J to the extent that they are relevant to issues in dispute in these proceedings. Although this approach is contrary to s 91(1) of the Evidence Act 1995, this Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit: Administrative Decisions Tribunal Act 1997 (Tribunal Act), s 73(2). In addition we may determine our own procedure: Tribunal Act, s 73(1). In the interests of minimising costs and further delays we agreed to this approach.

12 Background to HealthQuest referral. In Crewdson v Department of Community Services & Anor [2002] NSWIRComm 121 at [8] to [9] Boland J summarised the incidents leading to Mr Crewdson being referred to HealthQuest:

In June 1997 an incident occurred where a client was injured. The client was totally blind, had cerebral palsy, suffered from epilepsy and had an intellectual disability. Mr Crewdson said that no investigation was conducted into the incident and that he expressed his concern about the incident to Ms Julia Gillett, the House Manager and made known to her his view that the injury to the client was the fault of another staff member, Mr Damian Lutvey, who failed to care for the client in the proper manner.

The applicant said that following his complaint he was subjected to "increasingly violent verbal attacks and harassment" by a colleague of Ms Gillett’s, namely Brian Combie-Brown and that Ms Gillett permitted this to occur. In July 1997 the applicant submitted a formal complaint about Mr Combie-Brown’s conduct to Ms Gillett. The complaint referred to Mr Combie-Brown’s behaviour towards the applicant as well as Mr Combie-Brown’s poor attitude towards clients. The applicant deposed that Ms Gillett refused to resolve his complaint and instead, "began herself to subject me to hostile personal attack."

13 In Crewdson (No 11) Boland J set out Mr Crewdson’s allegations in relation to the incidents in 1997 at [4]:

Putting it in broad terms, the applicant contended that because of concerns he had and complaints he made about the inadequate standard of care of clients by certain staff members, and the failure of those in supervisory positions to act on his complaints he was victimised, subject to verbal abuse and eventually, in order to get rid of him, directed to attend for a psychiatric examination at HealthQuest in October 1997. The direction, it was contended, was made without any proper authority and on wholly specious grounds, they being mainly allegations about his mental and emotional state. Further, the applicant alleged corrupt conduct by the (Department) . . . in attempting to cover up improper treatment of clients.

14 Respondents’ version. The Department’s evidence before the IRC was that the House Manager, Ms Julia Gillett, was concerned that Mr Crewdson’s attitude to the residents was less than objective and that he was creating problems for other staff. Ms Gillett discussed the issue with Ms Jackie Pitchford, Assistant Community Manager, Disabilities. She expressed the view that Mr Crewdson was becoming obsessed about several matters including the behaviour of two other staff members, client management issues and staff complaints about his own conduct. Ms Gillett wrote a memorandum at the request of Ms Pitchford in which she expressed concern about Mr Crewdson’s mental state. Ms Gillett’s memorandum was also given to HealthQuest. After further discussions, Ms Pitchford decided to refer Mr Crewdson to HealthQuest for an assessment of his fitness to continue work.

15 Dr Roberts’ opinion. On 10 October 1997 Dr Jagger, Deputy Director of HealthQuest, referred Mr Crewdson to a psychiatrist, Dr Roberts. Mr Crewdson attended the appointment because he believed he was required to do so. Dr Roberts was not able to conduct a full examination because Mr Crewdson objected. However, on the basis of the information she was able to glean, Dr Roberts formed the view that Mr Crewdson "may well have been suffering from significant mental illness." Boland J regarded Dr Roberts’ view as a valid opinion.

16 Dr Jagger’s opinion. Dr Roberts discussed the matter with Dr Jagger who accepted her recommendation that Mr Crewdson should be advised to take leave and consult a private psychiatrist. On 29 October 1997, Dr Jagger wrote to the Department saying that:

Mr Crewdson is currently unfit for work and in need of further psychiatric assessment and consideration of treatment. He has been told he should seek referral to a psychiatrist via his own doctor. He should proceed on sick leave and not resume work until he has provided a report requested from his consulting psychiatrist to HealthQuest. This will take about three months, as he needs to be seen more than once to explore his mental health fully.

17 In relation to Mr Crewdson’s application for employment, Mr Newbery referred to this opinion as requiring a "clearance" from HealthQuest.

18 Dr Gapper’s opinion. Mr Crewdson did not accept this advice. On 29 October 1997 the Department directed Mr Crewdson to cease work. At first he was on sick leave and when that leave expired in February 1998 he remained an employee on leave without pay. On 6 February 1998 Dr Helia Gapper, NSW Government Medical Officer, wrote to the Department in the following terms:

Opinion

Mr Crewdson is temporarily unfit for work and in need of further assessment and consideration of treatment by a psychiatrist of his own choice. He is not considered permanently unfit for his substantive job given past very satisfactory work performance and likelihood of improvement of his current health with appropriate medical assessments and advice

Recommendation

Mr Crewdson should continue on sick leave whilst he seeks further professional advice from a psychiatrist.

Mr Crewdson should be reviewed by HealthQuest when his own doctor certified that he is fit for work.

If Mr Crewdson does not attend a psychiatrist and provide evidence that he is fit for work, then a review at HealthQuest by a psychiatrist should proceed as soon as possible so that his employment situation is clarified and further advice can be given to the employer.

If a review by HealthQuest is requested, Mr Crewdson will be examined by a different psychiatrist to attempt to allay his expressed concern currently focussed on the particular specialist who saw him.

Mr Crewdson should be reassured by the employer that both HealthQuest and his employer are concerned about his well being and fully support his return to work when he is fit to do so.

19 Boland J’s findings. In Crewdson (No 11) Boland J summarised his view of the evidence leading to the decision to direct Mr Crewdson to HealthQuest for an examination as to his fitness for work at [47]:

(12) Despite the flaws in the process, I do not consider that the referral of Mr Crewdson to HealthQuest was unconscionable or done in bad faith, or discriminatory, or done for an improper purpose or other than out of concern for the applicant's welfare.

(13) Notwithstanding the flawed process I, nevertheless, consider there were reasonable grounds for concern regarding Mr Crewdson's emotional or mental state and that it would not have been reasonable to take no action at all. There were, in my opinion, reasonable grounds for believing that Mr Crewdson's mental health may have been seriously affected if he remained on duty.

20 In relation to the Deed of Release, His Honour concluded that it was valid and binding on the parties. As a result, Mr Crewdson employment with the Department ceased on 2 October 1998. The Court of Appeal dismissed Mr Crewdson’s appeal against this decision: Crewdson v Industrial Relations Commission of NSW & Ors [2007] NSWCA 178 (25 July 2007). Although Mr Crewdson disagrees with Boland J’s orders, they are binding on the parties and this Tribunal has no jurisdiction to re-visit them.

Findings of fact

21 Before considering the respondents’ application for summary dismissal it is necessary to make factual findings in relation to that application. Some of those findings are also relevant to Mr Crewdson’s complaints of disability discrimination and victimisation.

22 Conversations with Mr Newbery. During 1998, when Mr Crewdson had stopped working for the Department but before his employment had been terminated, Mr Newbery had several conversations with Mr Crewdson. In the course of those conversations, Mr Newbery told him that if he wanted to return to work with the Department he would need to obtain a clearance from HealthQuest. Mr Crewdson told Mr Newbery that he had no intention of ever going to HealthQuest for a psychiatric assessment.

23 Job applications. In August 1999 Mr Crewdson was homeless. He applied to Centrelink for job search allowance. One of the requirements to receive that allowance was that he apply for jobs for which he was qualified. He applied for jobs with the Department but when he was unsuccessful he also applied for jobs with non-government agencies. Mr Crewdson applied for the position of Residential Support Worker with the Cumberland Prospect Area which was advertised in the Sydney Morning Herald on 25 September 1999. The interview for that position took place on 15 October 1999 before a panel of three people – Joe Lyons, convenor, Lesley Russell and Maria Papalardo.

24 Reasons for application being unsuccessful. On 25 October 1999, Mr Crewdson was notified that his application had not been successful. He telephoned the convenor of the panel, Mr Joe Lyons, who agreed to send him a copy of the panel’s reasons for decision. Those reasons were as follows:

Overall response to questions was above the average of others interviewed although the panel noted he took some time to gather his thoughts and his responses seemed laboured. Has 8 years residential care experience. Demonstrated good knowledge of DSA (Disability Services Act) and programming and all responses showed a commitment to people with disabilities. Was asked at interview for a recent direct supervisor for reference check. Gave House Manager although he explained the conflict with her. Contacted HM who gave a very negative report. Sought advice from David Haynes. He contacted Leon Newbery (referee). Leon advised that HealthQuest has assessed Gerard Crewdson as not fit to work in residential care and does not have clearance to work in that field. The decision to not recommend him for a position was based on the report from the House Manager and advice from Leon Newbery. (Words in brackets added.)

25 Mr Newbery’s reasons. Evidence as to the reasons Mr Newbery told the selection panel not to employ Mr Crewdson is contained in his statement dated 18 October 2007 and in a letter he wrote to the Anti-Discrimination Board dated 10 July 2001. The relevant part of the statement is at paragraph 4:

The need to obtain a clearance from HealthQuest was an administrative process arising from advice received from HealthQuest by the Department in 1997. This advice indicated that at that time Mr Crewdson was unfit for work and that he was required to be reassessed by HealthQuest or to provide a report from a psychiatrist of his choice to HealthQuest for their further assessment as to his fitness before he could be returned to duties.

26 Mr Newbery’s letter to the Anti-Discrimination Board described what he told the selection panel when he was phoned for a reference:

. . . I have advised that DOCS had a finding from the Government Medical Officer that he should not return to work in disability care until further assessed as fit to do so, and that on this basis he should not be employed in these roles.

Without a satisfactory assessment of his fitness, I have been concerned that the issues which led to Mr Crewdson’s referral to HealthQuest have not been resolved. I believe the element of doubt about his psychiatric fitness would require an unreasonable adjustment in the workplace by way of constant supervision to maintain the Department’s duty of care to clients.

27 Mr Newbery concluded his letter by expressing the view that, "This was not a refusal to offer employment on the basis of a presumed disability, but on the basis of authoritative medical evidence that he could not undertake the duties of the positions for which he applied."

28 Ms Gillett as a referee. During the interview for the position Mr Crewdson was asked whether he could provide a reference from a direct supervisor. Mr Crewdson tried to explain why it would not be appropriate for him to ask Ms Gillett to comment on his work performance but reluctantly gave Ms Gillett’s name and permission to contact her. Mr Lyons contacted Ms Gillett and asked her for a reference. She was surprised that she had been asked to give Mr Crewdson a reference and told Mr Lyons that she had some differences with Mr Crewdson "regarding shortcomings in his work performance as a team player." She says she suggested that Mr Lyons telephone Mr Newbery at Human Resources as she was certainly not willing to give Mr Crewdson a positive reference unless he had addressed the concerns relating to his mental health. We accept Ms Gillett’s evidence as to the content of this conversation. It is consistent with the selection panel’s reasons for decision which records that Ms Gillett gave a "very negative report". There was no other evidence of Ms Gillett’s conversation with Mr Lyons and Mr Crewdson did not seek to cross-examine her.

29 Mr Newbery as a referee. Mr Crewdson also nominated Mr Newbery, Assistant Director Corporate Human Resources, as a referee. The reason for doing so was that Mr Newbery had signed the Statement of Service referred to above at [8] and Mr Crewdson personally liked Mr Newbery and believed that Mr Newbery had a regard for him. Mr Newbery did not know that Mr Crewdson had nominated him as a referee until he was contacted after the interview. Later Mr Newbery told Mr Crewdson that he was not happy about being named as a referee. We accept this evidence, which is consistent with the selection panel’s reasons for decision. Again, Mr Crewdson did not seek to cross-examine Mr Newbery.

30 Phone call with Newbery. On 19 January 2000 Mr Crewdson telephoned Mr Newbery to ask the reasons for his advice to the selection panel that he needed a clearance from HealthQuest. He said Mr Newbery told him that there had not been any question about his work performance. Mr Newbery denied saying that there was "no question" or "nothing wrong" with Mr Crewdson’s work performance. He said he told Mr Crewdson that work performance was not the basis for his view that he needed a clearance from HealthQuest before he could be employed. He said that the matter was treated as a medical issue rather than as a performance issue. Mr Newbery said that the Statement of Service he gave as part of the Deed of Release was not a personal reference and that he was not able to comment first hand on Mr Crewdson’s work performance. Regardless of the exact words Mr Newbery used, we accept that the selection panel’s decision not to offer Mr Crewdson the position was not based on any concerns Mr Newbery had about his performance.

Application for summary dismissal

31 Legal basis for dismissal. The Department and Ms Gillett applied for the respective complaints against them to be dismissed as vexatious under s 73(5)(h) of the Administrative Decisions Tribunal 1997 (Tribunal Act). Both s 73(5)(h) of the Tribunal Act and s 102 of the AD Act give the Tribunal power to dismiss proceedings if they are vexatious. While there is no substantive difference between the two provisions, s 116 of the AD Act provides that Division 4 of that Act (which includes s 102) "applies in addition to the provisions of the Administrative Decisions Tribunal Act 1997 but prevails over those provisions to the extent of any inconsistency." In those circumstances, we have taken the Department’s application to be an application under s 102 of the AD Act. That provision states that:

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i) or (ii) or (b).

32 Vexatious? The grounds on which the President may decline the whole or any part of a complaint under those provisions include where the President is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance: s 92(1)(a)(i). Proceedings may be vexatious if they are instituted with the intention of annoying, harassing or embarrassing the respondent, if they are brought for a collateral purpose such as wasting time or causing delay, are devoid of any practical effect, or are manifestly untenable: Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 at 491; Re Williamson and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467 at [30] to [31]; Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [9] to [11]; Wilde v University of Sydney [2004] NSWADTAP 32 at [10].

33 Respondents’ submissions. In summary, the Department submitted that the Tribunal should dismiss the complaints because they were not made in good faith. Three propositions were advanced in support of that contention. Firstly, Mr Crewdson’s attitude to litigation reveals that he has no appreciation of the merits of the case and is determined to punish those who he regards as responsible for his situation. Secondly, he nominated referees without asking them and in circumstances where he knew their response would be negative. Thirdly, he manufactured the complaints because he applied for the positions knowing that he would not be offered a job unless he obtained a clearance from HealthQuest. We address each of those submissions in turn below.

34 Attitude to litigation. Mr Crewdson has been engaged in litigation against the Department and others since shortly after he was referred to HealthQuest in 1997. According to the Department and Ms Gillett, Mr Crewdson has single-mindedly pursued litigation against the Department presumably to punish the people he considers to be responsible for his situation. In support of this proposition the Department cited the following passage from the decision of Boland J in Crewdson (No 11) at [142] to [143]:

142 I expect the applicant will not be satisfied with the view I have taken in relation to his claims, regardless of whether he believes I have considered all of his arguments. I note what the Equal Opportunity Tribunal said in Crewdson v Niland & Ors [2001] NSWADT 87 at [33]- [34]

33 From his demeanour and the evidence that he has put before the Tribunal, the complainant is quite clearly absolutely convinced of the validity of his complaint. He is so persuaded to this view that any finding which differs from the path he seeks to take he regards as demonstrating some form of bias against him, or some mistake in law. He takes any such finding very personally, and the process clearly causes him stress. This situation is unlikely to change no matter when the process takes place.

143 I think the foregoing observation holds true today. Nonetheless, whilst I have great sympathy for the applicant for what he put himself through during the past seven years over what he considered to be gross injustice, an objective consideration of the law and the facts does not bear out his complaints. Accordingly, there is no other course open to me other than to dismiss Mr Crewdson's application for declaratory relief.

35 The Department also relied on a comment Mr Crewdson made during the course of a discussion about whether Mr Newbery should be a respondent to the discrimination complaint. Mr Crewdson said that he did not think Mr Newbery "should escape censure from my point of view for what he did." (Transcript of 27/9/07 p 12 line 8.)

36 Findings. Mr Crewdson has commenced numerous actions against the Department and others never wavering from his belief that he has been treated unfairly and unlawfully. He is determined to make the Department accountable for the action it took in referring him to HealthQuest and the subsequent treatment of him. However, his tenacity does not mean his complaints are vexatious, nor do we consider him to be motivated by a desire to punish particular individuals. Rather, he is seeking vindication for his view that he has been treated unlawfully.

37 Nomination of referees. According to the Department Mr Crewdson nominated Mr Newbery and Ms Gillett as referees without asking them first and in circumstances where he should have known that it was unlikely that he would receive a favourable reference at least from Ms Gillett. According to Ms Gillett, Mr Crewdson could have nominated Ms Cassie Rec as his referee as she had previously been his supervisor. As to Mr Newbery, the Department said that Mr Crewdson knew that he had signed the letter saying he was a satisfactory employee in his capacity as the Assistant Director, Corporate Human Resources and had very little knowledge of Mr Crewdson’s capacity as an employee.

38 Findings. Mr Crewdson agreed that he did not ask either Mr Newbery or Ms Gillett if they would be his referees, however, given his previous history with the Department he had very few options in terms of referees. We accept that he chose Mr Newbery because he felt that Mr Newbery had a regard for him and he had attested to him being a satisfactory employee. While he anticipated that Ms Gillett would give him an unfavourable reference he had no real choice but to nominate her when asked by the panel for the name of a direct supervisor. We do not accept the Department’s characterisation of these choices as being an attempt to manipulate the situation so that he would be in a position to make further complaints.

39 Requirement for a clearance from HealthQuest. The Department’s case was, in part, that Mr Crewdson knew when he applied for positions in the Department in 1999 that he would not be offered a position unless he obtained a clearance from HealthQuest. Ms Brus cross-examined Mr Crewdson at length on that question but Mr Crewdson denied that he was aware that that was the case. His motive in applying for positions notwithstanding that knowledge was, the Department said, to give himself an opportunity to make another complaint of discrimination.

40 Findings. Mr Crewdson had various conversations with Mr Newbery during 1998 in which he was told that he would need to obtain a clearance from HealthQuest before resuming work. Those conversations occurred prior to Mr Crewdson’s employment being terminated in October 1998. While he may have anticipated that the Department would not offer him a position unless he obtained a clearance from HealthQuest, he was never told expressly that that was the case until after his first application had been rejected. Our interpretation of his behaviour is that he needed a job and was hopeful that the Department would not persist with the requirement for a HealthQuest clearance, which he regarded as unlawful.

41 Conclusion. While Mr Crewdson had become fixated on the Department’s conduct and was firmly convinced that he had been wronged, we are not satisfied that he brought these proceedings for any purpose which would support a finding that the complaints are vexatious. His purpose was to remedy what he regarded as a grave injustice. The application for summary dismissal is rejected. We must now consider whether Mr Crewdson’s complaints of disability discrimination and victimisation have been substantiated. We begin by setting out the legal context in which appointments were made to vacant positions in the Department in 1999.

Legal obligations on appointment

42 In 1999 the appointment of a person to a vacant position within the Department was governed by the Public Sector Management Act 1988 (the PSM Act) and the Public Sector Management (General) Regulation 1996 (the PSM Regulation). While the PSM Act has been replaced with a new act, the PSM Regulation is still current. Section 26(2)(b) of the PSM Act obliged the Department Head, when deciding who to select for appointment to a vacant position, to select the applicant who has "in the opinion of the Department Head, the greatest merit". At that time, for the purpose of determining merit, the Department Head had a statutory duty to have regard to "the nature of the duties of the position and the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties": s 26(1). Although the provision refers to the Department Head, there was no dispute that Mr Newbery and the members of the selection panel were authorised to make decisions about who should be offered employment.

43 Clause 6 of the PSM Regulation provides that:

(1) A person may not be appointed to an officer’s position before the person’s fitness to carry out the duties of the position has been confirmed by a health assessment.

(2) Fitness to carry out duties includes the ability to carry out those duties without endangering the health and safety of the public, of other persons employed in the Department and of the person concerned.

(3) The health assessment is to be in the form considered necessary by the appropriate Department Head.

(4) That form may include (but is not limited to) any one or more of the following:

(a) a declaration (which may be a statutory declaration if required) provided by the person concerning any illness, disability or condition of which the person is aware that might make the person unfit to carry out the duties of the position,

(b) a medical examination by a medical practitioner approved by the Department Head,

(c) an examination by a medical practitioner, an optometrist or other appropriately qualified health care professional, approved by the Department Head, of a particular aspect of the person’s health likely to detrimentally affect the person’s capacity to carry out the duties of the position.

(5) The appropriate Department Head is to give the health care professional providing a health assessment referred to in subclause (4) (c) any requested information about the duties of the position concerned that is reasonably required for the purpose of providing the assessment.

(6) This clause does not limit any requirements made by the appropriate Department Head with respect to health assessments of persons employed as temporary employees.

44 The meaning of the relevant provision in the PSM Act and Regulation and their relationship with the AD Act was considered by the Appeal Panel of this Tribunal in some detail in Commissioner of Corrective Services v Maxwell & Anor [2001] NSWADTAP 21 at [40] to [72]. In that case Mr Maxwell had applied for a position with the Department of Corrective Services. He was the recommended candidate and was offered the position subject to completing a medical assessment. The outcome of the assessment, conducted by Dr Mahadev of HealthQuest, was that Mr Maxwell was unfit for the full range of duties because of his poor eyesight and he was not recommended for appointment. He complained of disability discrimination. The Tribunal held that the complaint had been substantiated. On appeal, the Appeal Panel agreed with the Tribunal’s conclusions.

45 Appeal Panel’s reasoning in Maxwell. In Maxwell, the Appeal Panel rejected the respondent’s submission that Mr Maxwell was not denied employment on the ground of his disability but because of his failure to satisfy the health assessment which was a statutory pre-condition to appointment and that consequently the provision of the AD Act relating to offering employment (s 49D(1)(b)) did not apply to the circumstances of the case. The Appeal Panel analysed the relevant PSM Act and Regulation and previous decisions and came to the view at [58], that a Department Head has an obligation to comply with s 49D(1)(b) and other relevant parts of the AD Act when making employment decisions, including when exercise the power to make decisions about who should be offered employment. The Appeal Panel agreed with the Tribunal’s conclusion that the Department of Corrective Services had not made out the "inherent requirements" defence in s 49(D)(4). (See [53] below.) To the extent that they are relevant to issues in these proceedings, we agree with the Appeal Panel’s reasoning and conclusions.

AD provisions - complaint of disability discrimination

46 AD Act provisions. Section 49D(1) of the AD Act states that:

(1) It is unlawful for an employer to discriminate against a person on the ground of disability:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

47 Mr Crewdson alleged that the Department was in breach of s 49D(1)(b).

48 Definition of disability. Disability is defined broadly in s 4 to include:

(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

49 This definition covers a mental illness. To be unlawful, conduct under s 49D(1) does not have to be on the ground of a disability that the person actually has at the relevant time. It includes past, presumed and future disabilities. Section 49A states that:

A reference in this Part to a person’s disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

50 Mr Crewdson alleged that the discrimination in this case was on the ground of a disability that he was thought to have had in the past, that is a mental illness: s 49A(c).

51 Definition of discrimination. Discrimination on the ground of disability is defined in s 49B(1). Mr Crewdson relied on so-called "direct" discrimination which is defined in s 49B(1)(a):

(1) A person ("the perpetrator") discriminates against another person (the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability

52 The two components of this definition have been referred to by this Tribunal as "differential treatment" and "causation": Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [45]. In relation to the "causation" component, s 4A provides that:

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.

53 Inherent requirements defence. Section 49D(4) provides a defence to a respondent who has refused to offer employment (or who has dismissed an employee) on the ground of disability:

Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

54 The Department did not rely on this defence even though Mr Newbery’s view was that the refusal to employ Mr Crewdson was not " ... on the basis of a presumed disability, but on the basis ... that he could not undertake the duties of the positions for which he applied." In the Department’s view the question of whether or not Mr Crewdson could perform the inherent requirements of the position could not be determined until he agreed to a further assessment by HealthQuest as had been previously recommended. As he refused to attend such an assessment, the Department said that it was unable to assess his ability to perform those requirements. While it is not directly relevant to the issues in these proceedings, we note that clause 6 of the PSM Regulation provides a prospective employer with a mechanism for determining whether or not an applicant who has or may have a disability, is capable of performing the inherent requirements of the position, either with or without assistance: Commissioner of Corrective Services v Maxwell & anor (EOD) [2001] NSWADTAP 21 at [89].

55 Findings of Boland J. In defence of its actions, the Department relied, in particular, on two findings of Boland J in relation to Mr Crewdson’s referral to HealthQuest. The first was that:

Notwithstanding the flawed process I, nevertheless, consider there were reasonable grounds for concern regarding Mr Crewdson's emotional or mental state and that it would not have been reasonable to take no action at all. There were, in my opinion, reasonable grounds for believing that Mr Crewdson's mental health may have been seriously affected if he remained on duty.

56 Boland J also accepted as a valid opinion, Dr Roberts’ view that at the time she saw him he may well have been suffering from significant mental illness and that it was inappropriate that he return to work.

Issues

57 Issues. Given that it is not in dispute that the Department refused to offer Mr Crewdson employment and it did not rely on any defence or exception, the issues are:

(a) in the same circumstances, or circumstances which are not materially different, would the Department have refused employment to a person who was not thought to have had a disability in the past (differential treatment); and

(b) was at least one of the reasons for refusing Mr Crewdson employment that he was thought to have had a disability in the past (causation);

(c) what is the relevance, if any, of Boland J’s findings set out at [55] and [56]?

58 Approach to considering the two elements of discrimination. The first component of the test for direct discrimination in s 49B(1)(a) is the "differential treatment" test. The treatment afforded to Mr Crewdson must be compared with the treatment that would have been afforded to a person who was not thought to have had a mental illness in the past. In the absence of an actual employee whose treatment could be validly compared with the treatment given to Mr Crewdson, we must rely on a hypothetical person in a comparable situation: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19. The High Court has said that the two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231]. That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amount to a single question, namely why was the person treated in the way that they were treated? (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 at [7] and [8] and Dutt v Central Area Health Service [2002] NSWADT 133.) Consequently, we are unable to determine how a hypothetical comparator would have been treated without first deciding the causation question.

Causation

59 In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92, when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), the majority of the High Court said that the test was:

... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.

60 The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended. The test is not whether "but for" Mr Crewdson’s disability, he would have been treated in the same way. While Gummow, Hayne & Heydon JJ did not refer specifically to that test in Purvis, Gleeson CJ rejected it at [13]. McHugh & Kirby JJ (dissenting in the decision, but not on this point) said at [166] that the "but for" test is no longer the accepted test of causation in the context of anti-discrimination legislation. We have proceeded on the basis that that is a correct statement of the law.

61 Findings. We find, on the basis of the selection panel’s report and the evidence from Ms Gillett, Mr Newbery and Mr Crewdson, that after interview, the panel formed the view that Mr Crewdson was the applicant with the greatest merit: PSM Act, s 26(2)(b). That conclusion is supported by the panel’s finding that his "overall response to questions was above the average of others interviewed" and that he had "8 years residential care experience". The panel also noted that Mr Crewdson "demonstrated good knowledge of DSA (Disability Services Act) and programming and all responses showed a commitment to people with disabilities." However, after a conversation with Mr Newbery, the selection panel was instructed not to offer Mr Crewdson employment.

62 The causation requirement is met as long as one of the reasons for the treatment (whether or not it is the dominant or substantial reason) is the disability or, in this case, the past presumed disability: AD Act, s 4B. It does not matter that the very negative reference from Ms Gillett was another reason Mr Crewdson was not offered employment. The advice that Mr Newbery gave to the selection panel was based on HealthQuest’s assessment that Crewdson had been assessed as unfit for work and could not return to work until a psychiatrist had assessed his fitness. His assumption that he may have had a mental illness in the past was one of the reasons for refusing to employ him. Although Mr Crewdson did not argue his case as being on the ground of a disability that Mr Newbery thought he had at the time, Mr Newbery’s view was that there was an "element of doubt about his psychiatric fitness". In addition to thinking that Mr Crewdson had a disability in the past, Mr Newbery was also of the view that Mr Crewdson should not be employed because he had failed to prove that he was not still suffering from a mental illness.

Differential treatment

63 Returning to the question of differential treatment, the comparison must be made with another hypothetical applicant for the same position in circumstances which are the same or not materially different. As the High Court said in Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92, the first step when applying the differential treatment requirement is to identify the objective features or circumstances attending the treatment given to the person.

64 Findings. The objective circumstances in this case were that, subject to checking with referees, the members of the selection panel found that Mr Crewdson was the applicant with the greatest merit. The objective circumstances also include the fact that he had previously been found to be unfit for the same or similar work pending further psychiatric assessment. Mr Crewdson did not suggest a comparable circumstance to test how the Department would have treated a hypothetical applicant for the same position, nor are we aware of a circumstance that would provide a valid comparison. Nevertheless, we are satisfied that a comparable person in a similar situation who was not thought to have had a disability would not have been refused employment at the point in the process that Mr Crewdson was refused employment.

Relevance of Boland J’s findings

65 The findings of Boland J set out at [55] and [56] do not provide an exception or defence to the Department’s conduct. The question is not whether Mr Crewdson may have been suffering from a mental illness in 1997 or whether it was appropriate for him to return to work at that time, it is whether the Department breached the AD Act by refusing to offer Mr Crewdson employment in 1999.

Conclusion

66 For these reasons we find the complaint of disability discrimination substantiated. If the Tribunal finds that a complaint, or part of a complaint is substantiated, it may order certain remedies including damages: AD Act, s 108. We consider the issue of remedies below at [86] to [94].

Victimisation complaint

67 Legislative provisions. Mr Crewdson’s second complaint was that Ms Gillett, the supervisor in the group home in which he had been working in 1997, gave him a "very negative reference" in relation to his application for the position of Residential Support Worker with the Cumberland Prospect Area. He says that the reason she did so was because he had complained about the treatment of residents in the group home. Victimisation is unlawful under s 50 of the AD Act which provides that:

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

68 The clear intention of s 50 is to ensure that victims of discrimination are not deterred from doing any of the things in s 50(1)(a)-(e) by the fear that they may be further victimised: Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 at [166]. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [235] the Tribunal said:

We see the steps as logically proceeding in this order: a Tribunal will ask whether an applicant did or was suspected of doing one of the acts in s 50(1), (the triggers) and whether the respondent did anything which caused detriment to the applicant. If the answer to both is ‘yes’, the Tribunal will then ask whether there is a causal link between the two: did the respondent do that thing on the ground that the applicant did or was suspected of doing one of the acts in s 50(1)?" (Words in brackets added. Italics added.

69 Triggers. Mr Crewdson says that the "trigger" for the detriment were his allegations that Ms Gillett and other staff had mistreated, neglected, abused and assaulted clients at the group home during the period between May and October 1997. He said that these triggers come within s 50(c) and that his allegations would amount to a contravention of the AD Act. The complaints that Mr Crewdson made about the treatment of clients were summarised by Boland J in the Crewdson (No 11) decision at [11] to [15]:

11 In June 1997 an incident occurred where a client (AM) was injured in a fall. The House Manager, Ms Julia Gillett, in her evidence before this Court, acknowledged the injury to the client's face and nose was reasonably serious. The client was totally blind, had cerebral palsy, suffered from epilepsy and had an intellectual disability. Mr Crewdson took a particularly close interest in this client's wellbeing. He said that no investigation was conducted into the incident and that he expressed his concern about the incident to the House Manager and made known to her his view that the injury to the client was the fault of another staff member, Mr Damian Lutvey, who failed to care for the client in the proper manner. Mr Crewdson believed that Mr Lutvey had been "abusive and bullying" towards AM. The applicant also began to express his concern at the treatment of other clients by staff at the House.

12 The applicant said that following his complaint regarding Mr Lutvey he was subjected to "increasingly violent verbal attacks and harassment" by another staff member, Brian Combie-Brown, and that Ms Gillett permitted this to occur. The first verbal attack occurred on 22 June 1997. Mr Crewdson said at the end of his shift he was farewelling a resident, AM, who had asked Mr Crewdson not to go. The applicant said he was assuring the resident he would be back on night shift when Mr Combie-Brown "suddenly interjected, asked me to leave and alleged that my manner of interaction with [AM] would cause him to engage in 'difficult behaviours' for the rest of the shift." Mr Crewdson said he was "shocked by his outburst and deeply embarrassed ... I ran out of the door. As a consequence of his attack I suffered a bout of depression and insomnia." Mr Crewdson wrote to Mr Combie-Brown about what had occurred but he did not receive a reply.

13 Mr Combie-Brown's second verbal attack occurred on 27 July after Mr Crewdson asked him about a letter he had sent to Mr Combie-Brown about the earlier attack. Mr Crewdson said:

Mr Crombie-Brown defended his earlier behaviour and told me that I had a relationship of 'emotional dependency' on [AM] and that I was in 'denial'. He also told me that other staff shared his concerns and that I was creating problems for everyone else and that my conduct on 22 June 1997 had been 'unprofessional'. I went home in a state of great 'agitation and unhappiness'. I rang Ms Gillett that night to explain what had happened and to arrange a discussion with her.

14 On 30 July Mr Crewdson informed Mr Combie-Brown that he had spoken to Ms Gillett and was submitting a formal grievance. Mr Combie-Brown replied, "I couldn't give a fuck what you say". Mr Crewdson said as he was leaving he told Mr Combie-Brown that the right way to deal with staff issues was "through our supervisor and he was not my supervisor." Mr Combie-Brown then said, "If I had been your supervisor, you would have been sacked long ago."

15 On 31 July 1997 the applicant submitted a formal complaint about Mr Combie-Brown’s conduct to Ms Gillett alleging that there had been a violation of client rights by Mr Combie-Brown. The complaint referred to Mr Combie-Brown’s behaviour towards the applicant as well as Mr Combie-Brown’s poor attitude towards clients. The applicant said he had been very emotionally affected by Mr Combie-Brown's verbal attacks on him. The applicant had become increasingly insistent about this and the conduct of Mr Lutvey towards AM. The applicant said that Ms Gillett refused to resolve his complaint and instead, in August 1997 "began herself to subject me to hostile personal attack." What Mr Crewdson described as a "hostile personal attack" by Ms Gillett was no more than on 8 August Ms Gillett raising a number of issues with Mr Crewdson including her concern that "you've been causing distress to staff, talking to them about your conflict with Brian Combie-Brown.

70 Mr Crewdson says that the complaints he made about the treatment of residents would amount to a contravention of the AD Act within s 50(1)(c) because:

(i) the residents have a disability within the meaning of that term in s 4 of the AD Act;

(ii) the Department was providing a service to the residents within the terms of s 49M of the AD Act;

(iii) the Department discriminated against the residents in the course of providing them with those services by assaulting, neglecting, verbally abusing and bullying them and denying them their basic human and legal rights.

71 Section 49M provides that:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

72 Finding. We accept that the residents had a disability as defined in s 4 and that the Department was providing them with a service under s 49M. We are satisfied that even though he did not use the word "discrimination" Mr Crewdson alleged that the clients were being treated less favourably than clients without a disability would have been treated and that that treatment was on the ground of their disability. The complaints Mr Crewdson made come within s 50(1)(c) in that they allege that the Department has committed an act which, whether or not the allegation so states, would amount to a contravention of the AD Act. There is no need for the Tribunal to make a finding as to whether or not the act did amount to a contravention of that Act.

73 Detriment? The second element of s 50(1) is that Mr Crewdson has been subjected to a detriment. The word "subject" does not require intention on behalf of the respondent: Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92–808 at 78, 986; Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 at [169]- [171]. Being subjected to a detriment means that the complainant has been placed under a disadvantage as to a matter of substance, as distinct from a trivial matter: Bogie v The University of Western Sydney (1990) EOC 92–313 at 78,146.

74 Finding. We have concluded in accordance with the selection panel’s report that one of the reasons that Mr Crewdson was not offered the position was the very negative reference from Ms Gillett. That reference can be characterised as a detriment.

75 Causation. The detriment must be "on the ground that" Mr Crewdson made the complaints about the residents. Section 4A, which makes acts unlawful if at least one of the reasons for the act is a ground of discrimination, does not apply to complaints of victimisation: Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at 78,986; Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 at [175]. The question is whether the complaints Mr Crewdson made were "a real" or "an operative ground" for the negative reference: Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 at [177]. Mr Crewdson relied on the following assertions in support of his case:

(i) his performance was satisfactory so there was no basis for Ms Gillett’s comment that he had "shortcomings in his work performance as a team player";

(ii) Ms Gillett changed her original allegation to HealthQuest that Mr Crewdson was suffering from a serious psychiatric illness to an allegation to Mr Lyons that he was not a good team player;

(iii) Ms Gillett wrote a memorandum about Mr Crewdson’s mental state which was not accurate; and

(iv) Ms Gillett admitted that she was angry and frustrated with Mr Crewdson.

76 Performance and change to original allegation. In relation to Mr Crewdson’s work performance, we have found that the selection panel’s decision not to offer him the position was not based on any concerns Mr Newbery had about his performance. However, despite Ms Brus’ comment during the course of the proceedings that Mr Crewdson was, essentially, regarded as a satisfactory employee (transcript 29/9/07, page 6 line 35), Ms Gillett’s view to the contrary was one of the reasons for the selection panel’s decision not to offer him employment. Ms Gillett’s recollection of the conversation she had with Mr Lyons was that, "I told Mr Lyons that I had had some differences with Mr Crewdson regarding shortcomings in his work performance as a team player." According to Mr Crewdson, there were no problems with his work performance and the only time Ms Gillett ever made a negative comment was to point out that he had not cleaned the fish tank.

77 Findings. Ms Gillett’s opinion that Mr Crewdson was not a good "team player" is consistent with her concerns in 1997 about the way Mr Crewdson related to other staff members. Boland J recorded his findings in Crewdson (No 11) at [16] to [17] in the following terms:

16 On 1 September 1997 Ms Gillett raised a number of further issues with the applicant concerning complaints by other staff about the increase in workload the applicant was causing them. Ms Gillett said she was concerned about what might be described as the applicant's less than objective approach to caring for some of the clients and that this was creating problems for other staff. She said Mr Combie-Brown had valid criticisms of the applicant, which apparently upset the applicant greatly. In the course of the discussion the applicant again raised with Ms Gillett his wide-ranging concerns and criticisms regarding Mr Combie-Brown and Mr Lutvey and inadequate treatment of clients. The applicant stated that Ms Gillett verbally attacked him and suggested he seek a transfer to another group home, Whiteside. Ms Gillett indicated she would speak to Ms Jackie Pitchford, Assistant Community Manager, Disabilities, North Ryde District, about the transfer. Ms Pitchford had person-to-person contact with Mr Crewdson at monthly group house meetings. It is difficult to see how the matters raised by Ms Gillett amounted to a "verbal attack" although I note Mr Crewdson considered she had "a fierce look on her face".

17 It would appear that sometime after 1 September 1997 and prior to 11 September 1997 Ms Gillett had a conversation with Ms Pitchford about sending Mr Crewdson to HealthQuest for a psychiatric examination. It is not entirely clear which of the two suggested HealthQuest but Ms Gillett indicated that what she was concerned about was what she regarded as the applicant's continuing obsession with Mr Combie-Brown and Mr Lutvey, client management issues and staff complaints about the applicant's conduct.

78 It is not in dispute that staff members complained about the increase in workload they said Mr Crewdson was causing them. Whether or not Ms Gillett’s view of Mr Crewdson as not being a team player was justified, she had formed that view on the basis of his behaviour and conveyed it to Mr Lyons when contacted to provide a reference. Contrary to Mr Crewdson’s submission, we do not accept that this concern was something that Ms Gillett made up so that he would not be offered the position. Rather, we accept Ms Gillett’s evidence that she gave a "short, totally honest account of Mr Crewdson’s work performance under my supervision."

79 Memorandum. Mr Crewdson’s submission was that Ms Gillett instigated his referral to HealthQuest by making false allegations about his mental state in a memorandum to Ms Pitchford. Among other things, Ms Gillett said in that memorandum that:

My dilemma is not knowing what might, and not wanting to push Gerard ‘over the edge’, into a state of true paranoia or further stress and unhappiness, or more seriously into a truly suicidal state.

80 In relation to that memorandum Boland J found in Crewdson (No. 11) at [21] that:

Whilst Ms Gillett expressed her concerns about Mr Crewdson at length there was nothing poisonous or vindictive about the tone of the letter. Indeed, it conveyed a caring, sympathetic sentiment. However, I have approached Ms Gillett's perceptions about Mr Crewdson's mental and emotional state with some caution. I do not accept, for example, she considered him to be suicidal or paranoid or suffering any significant depressive illness because if that were the case a responsible manager would have moved much more quickly to remove Mr Crewdson from the house out of concern for the client's welfare and most certainly would not have proposed merely transferring him to another group home. There was a tendency towards exaggeration in Ms Gillett's memorandum and some of the instances cited as indicating a deteriorating mental condition on Mr Crewdson's part were unfair overstatements.

81 In summary, His Honour found at [47] that:

The references to "suicide", "delusions" and "paranoia" in Ms Gillett's memorandum of 15 September were exaggerations of Mr Crewdson's condition and prejudicial. Nevertheless, there was a proper foundation for Ms Gillett to be concerned about Mr Crewdson's welfare because he was clearly showing signs of stress and emotional instability to a much greater extent than, on any objective assessment, circumstances warranted.

82 Findings. We accept, in accordance with Boland J’s findings, that Ms Gillett exaggerated Mr Crewdson’s condition in the memorandum and that her characterisation of his condition was prejudicial. That finding does not support an inference that Ms Gillett made negative comments about Mr Crewdson’s performance as a team player because of complaints that he had lodged about the treatment of residents. The two incidents are not sufficiently connected for such an inference to be drawn.

83 Anger and frustration. Mr Crewdson relied on the statement that Ms Gillett gave to the Anti-Discrimination Board dated 25 July 2001. In particular, he relied on the following passages at paragraphs 7 and 8 respectively:

Mr Crewdson was always firm in his own opinions and would not accept any other view. In particular Mr Crewdson’s obsession with (AM’s) care was a concern for me.

. . .

I do acknowledge that I feel angry and frustrated, as it appears that there is no obligation for Mr Crewdson to substantiate his defamatory remarks about me and other staff members.

84 Mr Crewdson argued that the first passage supports his contention that Ms Gillett has continued to attack him for complaining about the treatment of the disabled residents in the group home. According to Mr Crewdson the second passage is an admission by Ms Gillett that she feels angry and frustrated about his complaints about her and other staff. We set out below the full context of the passages to which Mr Crewdson has referred with the parts Mr Crewdson relied on highlighted in italics:

Mr Crewdson maintains he was never responsible for causing physical or emotional harm to any client, either accidentally or intentionally. I accept Mr Crewdson would not intentionally cause harm to any clients. However, there was certainly an unintentional component present. Mr Crewdson was always firm in his own opinions and would not accept any other view. In particular Mr Crewdson’s obsession with (AM’s) care was a concern for me.

Mr Crewdson asserts that my angry letter to the Director-General was an attempt to deny him his legal right to complain. This is certainly not the case. I fully accept Mr Crewdson’s right to make a complaint and to have that complaint investigated. At the time of our confrontation, Mr Crewdson told me he intended to pursue this to the bitter end, and that I should not take it personally "no matter what happens to you". I told him he had to do what he had to do, and I did too. It is surely significant that every Agency (or officers thereof) which has been enlisted by Mr Crewdson to "investigate" my alleged fraudulence, was soon added to his list of Respondents. I do acknowledge that I feel angry and frustrated, as it appears that there is no obligation for Mr Crewdson to substantiate his defamatory remarks about me and other staff members.

85 When her statements are read in context, it is apparent that Ms Gillett was concerned, not that Mr Crewdson had complained about the treatment of residents, but that he had become "obsessed" with AM’s care. Similarly, her "anger and frustration" was not a result of the complaints Mr Crewdson made about the treatment of residents but as a result of allegations that Mr Crewdson had made about Ms Gillett, which she considered defamatory. None of Mr Crewdson’s assertions, either alone or in combination, satisfy us that Mr Gillett’s very negative reference was on the ground that Mr Crewdson had lodged complaints about residents. Rather, it was a genuine expression of her opinion. The complaint of victimisation is not substantiated.

Remedy for disability complaint

86 Section 108(2) of the AD Act allows the Tribunal to make any one or more of the following orders if a complaint of disability discrimination is substantiated:

(a) except in respect of a matter referred to the Tribunal under s 95 (2), order the respondent to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under s 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

. . .

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further action in the matter.

87 The orders Mr Crewdson sought were as follows:

1. $40,000 compensation for financial loss;

2. an order restraining the Respondent from continuing or repeating its conduct;

3. an order that the Respondent perform any reasonable act or course of conduct to redress any loss suffered by the complainant;

4. a public apology; and

5. an order to void the Deed of Release.

88 Allegations concerning Ms Brus. Mr Crewdson also made certain allegations about Ms Brus’ conduct and requested that the Tribunal take certain action in relation to those allegations. The Department submitted that many of Mr Crewdson’s submissions were scandalous and should be removed from the court file. We have not removed them from the file but have only taken into account submissions requesting orders which we have jurisdiction to make. We do not have jurisdiction to make orders in relation to any alleged conduct of Ms Brus in her capacity as the Department’s representative. Furthermore, we decline to make any findings or take any further action in relation to the allegations Mr Crewdson made about Ms Brus.

89 Deed of Release. Boland J found that the Deed of Release was valid. The issue of whether the Deed constituted discriminatory treatment was not an issue in these proceedings and we decline to make an order pursuant to s 108(2)(f) that the Deed is void.

90 Compensation. The salary for the position for which Mr Crewdson applied was $38,303.00 per annum. While he did not specify the period of time that he was or has been unemployed, there is evidence that Mr Crewdson was still applying for positions in the Department in January 2001. (See Tab 8 of the President’s Report.) Damages may be awarded to compensate Mr Crewdson for any loss of wages suffered "by reason of" the Department’s conduct. The test is whether the contravention of the AD Act materially contributed to Mr Crewdson’s economic loss even if other factors played an even more significant role in causing the loss or damage: Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 493 per McHugh J; Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22. We are satisfied that the Department’s decision not to offer Mr Crewdson employment materially contributed to lost wages in excess of $40,000. As $40,000 is the limit of the damages which can be awarded for each complaint that is the amount that we order the Department to pay to Mr Crewdson. That amount cannot be increased by any claim for non-economic loss, interest or any other form of compensation to which Mr Crewdson claims he is entitled.

91 Prohibitory orders. Mr Crewdson applied for an order restraining the Department from continuing or repeating any unlawful conduct. An order of this kind may, if appropriate, extend to conduct that affects people other than Mr Crewdson: s 108(3). However the circumstances in which Mr Crewdson applied for employment were specific to his situation. Consequently, the appropriate order is that the Department not refuse to offer Mr Crewdson employment on the same ground in the future. That order does not necessarily mean that the Department would be bound to offer Mr Crewdson employment if he was assessed as the candidate with the greatest merit. In accordance with clause 6 of the PSM Regulation, the Department cannot appoint a person to a position until the person’s fitness to carry out the duties of the position has been confirmed by a health assessment.

92 Mandatory orders. Mr Crewdson requested that the Department "fully redress all the damage caused to me not only by its conduct in and after October 1999 but all of its conduct in relation to the HealthQuest referral." He said that an order under this section was reasonable because it would be consistent with the principles set out in the NSW Ombudsman’s Good Conduct and Administrative Practice Guidelines at paragraph 4.8:

Agencies have a duty to provide appropriate redress where members of the public have been detrimentally affected by maladministration. This duty is owed to all persons affected by maladministration. Whether or not they have any legal entitlement to redress.

93 Mr Crewdson did not specify the order that he was requesting the Tribunal to make. Furthermore, we cannot make any orders in relation to the referral to HealthQuest because that referral was not in issue in these proceedings.

94 Apology. Although Mr Crewdson sought an apology, we do not regard a Tribunal ordered apology to be of any utility or significance in the circumstances of this case.

Costs

95 Mr Crewdson applied for costs. Generally costs are only awarded to a party who is legally represented. However, the Tribunal has allowed self-represented parties to apply for payment of their out-of-pocket expenses such as photocopying and postage: Director General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6. The Tribunal has a discretion to award costs if it is of the opinion that there are "circumstances that justify it doing so": AD Act, s 110. We have formed the preliminary view that the circumstances of this case do not justify an order for costs but if there is material of which we are not aware that Mr Crewdson wishes to bring to our attention, he should file and serve any evidence and submissions in support of his application for costs (limited to itemised disbursements) within 21 days of the date of this decision. The Department is directed to file and serve any submissions in reply within a further 21 days. The issue of costs will then be determined ‘on the papers’: Tribunal Act, s 76. If no submissions are received, no costs order will be made.