Monroe v Moore [2010] NSWADT 179 (19 July 2010)

Last Updated: 19 July 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Monroe v Moore [2010] NSWADT 179


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Sebastian Monroe

RESPONDENT
Ian Moore



FILE NUMBERS:
091049

HEARING DATES:
18 and 19 January 2010

SUBMISSIONS CLOSED:
19 January 2010



DATE OF DECISION:
19 July 2010

BEFORE:
Madgwick R - ADCJ (Deputy President)Schneeweiss J - Non-Judicial Member Monaghan-Nagle L - Non-Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED:


TEXTS CITED:


APPLICATION:
DISCRIMINATION – on ground of disability – indirect discrimination – meaning of "reasonable requirement" – significance of breaches of laws other than anti-discrimination legislation – accessorial liability – vicarious liability
DISCRIMINATION – on ground of responsibilities as a carer VICTIMISATION - on ground that person victimised alleged discriminator had committed act which would amount to contravention of Anti- Discrimination Act 1977 – meaning of "allegation"
PROCEDURE – desirability of reasons being expressed in plain English where possible

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
I Chatterjee, solicitor
RESPONDENT
In person


ORDERS:
1.Except insofar as the complaint alleges victimisation contrary to s 50(1)(c), it is dismissed.
2.The complaint of victimisation is found to be substantiated
3.The respondent is to pay the applicant damages in the sum of $4650 (subject to liberty to apply as to the arithmetical quantification of that sum).


Reasons for Decision:

REASONS FOR DECISION
Claims of discrimination and victimisation
1 Mr Monroe claims that his erstwhile employer Ian Moore Pty Ltd, a company which was Mr Moore’s alter ego, unlawfully discriminated against him in a number of ways and then victimised him for alleging that he was the subject of discrimination. The company has since been liquidated and Mr. Monroe says that Mr. Moore is personally liable either because he permitted the company to behave as alleged or by reason of his own conduct.

2 While the case discloses possible infractions of corporations and industrial relations laws, these proceedings cannot vindicate any rights Mr Monroe may have or have had under such laws. This is not a case simply about allegedly unfair dismissal. It concerns allegedly unlawful discrimination.

Trouble among architects
3 Both parties are architects. Mr Moore operated a practice previously known as Engelen Moore through the company. There were fewer than 20 employees, most of them architects. Mr Moore was usually present three and a half days each week.
In August 2007 Mr Moore employed Mr Monroe to work for the company. Mr Monroe started in September 2007 and Mr Moore terminated his employment by giving him notice on 28 March 2008.

4 At all relevant times Mr Monroe and his partner were HIV positive and suffered the disability called in the case "HIV". A few days after he started work Mr Monroe cut himself at work and for the safety of a fellow worker felt obliged to tell some of his co-workers of his medical condition.

Economic and medical pressures
5 It is important to note that at least from soon after Mr Monroe started, both parties and all the witnesses and other employees were, to varying degrees, worried people. From late 2007 the practice was progressively affected by the global financial crisis and associated commercial uncertainty. Various clients cancelled projects for which the company had done work, and others put projects with architectural work in progress "on hold". Payments due were not made on time or in some cases at all. This led to severe cash flow problems for the company and, at first occasionally but later chronically, the company could not and did not pay employees’ salaries and wages as they fell due. Mr Moore felt obliged to reduce his own remuneration by 70%.

6 Both parties had other serious matters for concern. Mr Monroe had his and his partner’s serious health issues and Mr Moore also had a seriously ill family member.

A liberally minded employer
7 Another important background matter is that Mr Moore took some pride, with some apparent justification, in his company’s being what is sometimes called an equal opportunity employer, and a flexible one. He had over at least 10 years employed several gay men and women, pregnant women and mothers of small children. Ms Meller, a long-serving and senior employee, gave instances of his willingness to provide a flexible workplace. There was nothing of the conscious or unconscious homophobe about him. He saw the enterprise as being run like a family, although of course employees in such a situation do not always share the employer’s appreciation of matters.

Impressions of the parties
8 A third preliminary matter is that the protagonists appeared to be honest witnesses, doing their best, given their different positions and personalities, to tell the truth.

Hostility to a HIV sufferer?
9 The first matter of dissension complained of was Mr Monroe’s perception that Mr Frank Buss, one of the fellow workers whom he had initially told of his HIV condition, began thereafter to treat him in a hostile fashion. There was however not enough evidence to justify an inference that any generalised antipathy of Mr Buss to Mr Monroe was related to the latter’s HIV condition. Mr Monroe seems not to have been universally popular and there is no basis for attributing that to others’ reaction to his HIV status.

Air conditioning - lack of due consideration of the needs of a HIV sufferer ?
10 As the weather warmed up towards the end of the year and into 2008, a dispute arose between Mr Monroe and two other employees, Mr Frank Buss and Ms Isabella Beck, over use of the air conditioning system. Architects in general, it seems, try to avoid such use. Mr Monroe’s medical condition made him especially vulnerable to discomfort in hot weather. He wanted the air conditioning turned on. Ms Beck and Mr Buss did not. Ms Beck had a medical condition such that her skin was adversely affected by air conditioning and she felt the need to wear a scarf and mittens when it was on. There was some contest of Mr Monroe’s turning it on and one of the others turning it off.


Actual harassment?
11 Clearly irritated, Mr Buss made a remark to Mr Monroe which disturbed him. Mr Monroe says that it was to the effect, "Why should I have to deal with your HIV status?" Mr Moore recalls that when Mr Monroe complained to him about the dispute, the latter reported that Mr Buss had said words to the effect "Why does everyone have to put up with your condition when other people have similar problems?" It may be accepted that Mr Monroe’s account of what he said was correct: Mr Monroe would likely not have taken so much offence if Mr. Buss had merely said what Mr Moore reported as Mr Monroe’s account of it.

12 Mr Moore investigated the dispute. Mr Monroe did not suggest to Mr Moore what he thought was the appropriate "compromise" solution, namely to have the air pumped in the heat of the day but not at other times. Ms Beck told Mr. Moore that Mr. Monroe had been "aggressive". Mr. Moore did not upbraid Buss for what he had said to Mr. Monroe.

13 Mr Moore did not do anything further before Ms Beck brought a fan to Mr. Monroe’s desk and suggested that he use it to cool himself. Mr Moore became aware of this and then did nothing further at all about the matter.

Late payment of wages
14 From soon after Mr Monroe started, the company began to be intermittently late in paying wages. Mr Moore told all those affected that the company had cash flow problems stemming from broader economic developments and that if any employee could not tolerate the late payment, then Mr Moore would "understand" if he or she should leave the company’s employ.

15 By the time of the air conditioning dispute, late payment of wages had become much more serious.

16 On at least two occasions Mr Monroe approached Mr Moore about particular difficulties the lateness was causing him. He could not afford to buy the medication he and his partner urgently needed for the HIV condition they each had. (Mr Moore denies that he was told about the partner but it is more likely that he was: Mr. Monroe had told senior employees of his partner’s condition and they advised him to talk to Mr. Moore). Mr. Monroe’s partner had only low wages from his work in a call centre.

17 Mr Monroe says that on one occasion Mr Moore said he would see what he could do but nothing happened, and on a later occasion Mr. Moore just reiterated that he had cash flow problems. Mr Moore’s recollection is that he twice gave Mr Monroe some money from his own personal funds to help him out. It is difficult to resolve this conflict. Mr Moore agrees that Mr. Monroe said that he had had to take a second job as a concierge. It is very likely that Mr Monroe gave affecting accounts of his and his partner’s needs. It is likely Mr. Moore would have wanted to help if he could. It is not likely that Mr Monroe would forget it if he had. Nor is it likely that memory would play such an odd trick on Mr. Moore. The recollection of one of the two parties is seriously wrong on this matter. It is not possible to be satisfied that Mr. Moore’s is the memory at fault. There is no reason, we repeat, to see either man as deliberately untruthful.

18 In general, Mr Moore had continued to say that those who could not wait could leave his company’s employ with no hard feelings on his part.

19 By March 2008 Mr Monroe was desperate. On Friday 7 March Mr Moore advised the employees that he had banked a cheque and hoped that they would have the pay that had been due on Thursday 27 February in a few days.

The end of the employment
20 On Friday 14 March Monroe informed the bookkeeper by email (with a copy sent to Mr Moore) that

"As per our discussion I will be talking to Ian [Moore] about this later tonight.

[it] is against the law to operate without paying staff. I am owed two weeks pay and six months worth of superannuation. Yes, I have an option of going elsewhere to obtain work. But Ian and ... yourself are breaking the law.

I expect to see my pay by no later than 5pm Monday 17 March 2008. Ian will have to retrench me before I move job. Before he can retrench me he must retrench all visa workers as is required by industrial relations laws.

What you and Ian are doing is immoral and illegal and I am asking you both to cease it immediately."

21 Mr Monroe did speak to Mr Moore on the same day. Mr Moore says it was a heated conversation, which seems likely, and that he upbraided Mr Monroe for his manner of speaking to the bookkeeper and himself. That also seems likely.

22 On or about 19 March Mr Monroe again complained and outlined his problems to Mr. Moore who was by then on annual leave (for the period 14 March to 1 April).
On 25 March Mr. Monroe and his partner learned of medical test results that suggested to them a diagnosis of AIDS for the partner. Mr Monroe sought emergency funds from Centrelink and was referred to the Workplace Ombudsman.

23 That agency wrote to Mr Moore saying that Mr Monroe

"alleges that the following matters remain unresolved:

Not paid for time worked"

The rest of the letter was similarly anodyne.
Mr Moore’s office received the letter on 27 March.

24 On 28 March Mr Moore dismissed Mr Monroe by an emailed letter in the following terms:

"Sent: Friday, 28 March 2008 11:41 AM

Subject: employment

Sebastian,

I wish to put in writing my response to your phone calls and email to Debbie Gawne [the bookkeeper] and myself of Friday 14 March, in addition to other recent events. I clearly stated to you that the current situation regarding late payment and outstanding payment of payroll (partially corrected with payments made yesterday) was due to cashflow issues which are beyond control of the company and would be rectified as soon as outstanding payments are received from clients (subject of course to making payments on due dates to the Australian Taxation Office which take priority). Until the office is able to build up substantial cash reserves this will remain the situation for some months to come.

All staff are updated regularly on the situation by Debbie and myself and we are all in the same situation of having to wait for our pay including Debbie and myself. In addition I told you that I have also taken a substantial reduction in my own pay to assist with the current situation. You were told that you had the options of either accepting the current situation or seeking alternative employment.

Debbie Gawne is a consultant to the company and simply takes care of our bookkeeping. She has no role in the financial management of the company. She rang me on Friday 14 March immediately after you had called her to inform me that she had received an abusive phone call from you and that she had had to hang up on you as a result of the comments and accusations that you were making against her. After your subsequent heated phone conversation with me, I received calls from other members of staff who stated that they felt your behaviour in relation to these calls was inappropriate and offensive and should not have taken place in the middle of the office. I concur with these comments as any discussion of this nature should be private and confidential and should have been made outside the office.

It has been brought to my attention this week that you have been harassing the associates [apparently more senior employees with some supervisory responsibilities] in relation to the financial affairs of this company. They are not shareholders in the company and play no role in the financial management of the company. They do not have any more information than any other employee, which they made very clear to you. The financial affairs of the company are none of your business and you should not even be seeking such information, it is highly inappropriate for you to do so.

Prior to 14 March I have had conversations with a number of other staff members who have voiced concerns about your general disruptive influence in the office and that it was noticed that this was always at times when I was away from the office. In general the staff have lost confidence in your ability to work within our closeknit team environment.

I also have serious issues in relation to your role on the McAssey house. The fact that you informed the client of a 3 week delay in Documentation without first discussing this with me is totally unacceptable. I have been waiting for you to provide me with a set of drawings for me to review for many weeks now and am concerned with the state of completion of what few drawings I have seen. The other members of staff provide me with current drawings every Friday night for my review as agreed as part of our standard operating procedures. You have been put in charge of coordinating the work of Lian and any other team members that may be required from time to time. However when I have looked at Lian’s drawings it is clear that they depart significantly from our office standards. There will be a considerable waste of time and money involved in rectifying these drawings. I was also less than impressed by your coordination of the structure, and embarrassed when you suggested offset spliced columns to resolve the most simple of structural issues, being a column running continuously through from top to bottom of the building.

Finally I must comment on the contents of your email of 14 March where you accuse both Debbie and myself of acting immorally and illegally. I find it difficult to believe that you can make such false and inappropriate claims against your employer and a fellow member of staff. I have sought legal advice in relation to your accusations and the other threats contained in your email and must terminate your employment effective immediately, with 2 weeks pay in lieu of notice, to be paid as soon as funds are available together with any outstanding back pay.

I would ask that you remove all personal items from the office this afternoon and leave your key with Nikki.

Ian Moore

Director

Ian Moore Architects"

Mr Monroe was out of work for a month following this.

The substantial issues
25 Three of Mr Monroe’s complaints require explanation and consideration in some detail:

1)Was he the victim of unlawful HIV-related discrimination by his employer, contrary to the Anti-Discrimination Act 1977, in relation to a) the air-conditioning dispute generally and b) Mr Buss’s remark to him coupled with Mr Moore’s failure to discipline Buss for it?

2)Was he unreasonably forced, contrary to that Act, to tolerate late payment of wages because his and/or his partner’s disability meant that he could tolerate such lateness less well than other employees not so afflicted?

3)Did his dismissal amount to victimisation under the Act for complaining about the alleged indirect discrimination involved in the late payment?

Relevant provisions of the Anti-Discrimination Act 1977

General auxiliary provisions
26 As to Mr Moore’s accessorial or vicarious potential liability, it is unlawful for one person to cause, instruct, induce, aid or permit another person (which term would include a corporation) to do any act made illegal by the Act: s 52. As a practical matter, it was rightly conceded that if the employing company contravened the Act, then Mr Moore must be regarded as having permitted it. He was the company’s guiding hand and sole controller.

27 If an act is done for more than one reason and one of the reasons consists of discrimination made unlawful by the Act, that act is to be taken as being done for that reason: s4A.

b) Disability discrimination
28 The term "disability" is broadly defined in ss 4 and 49A. There was, rightly, no dispute that HIV amounted to such.

29 It is unlawful for an employer (among other classes of persons) to discriminate in certain respects against an employee on the ground of the employee’s or his/her partner’s disability: ss49B and 49D and definition of "relative" in s 4. Those respects include subjecting the employee to any employment-related detriment: s49D(1) and (2). However, if in all the circumstances the disabled employee requires "services or facilities" to carry out the inherent requirements of his/her employment, a defence is available to the employer if the provision of such facilities would impose "unjustifiable hardship" on the employer: s49D(4). The onus is plainly on the employer to establish such hardship.

30 Discrimination on the ground of disability may be direct or indirect. Direct discrimination involves treating the employee less favourably than in like circumstances an employee without the disability is or would be treated: s49(1)(b).

31 Indirect discrimination occurs when the employer requires the disabled employee to comply with a requirement or condition i) with which he/she does not or cannot comply, but ii) with which a substantially higher proportion of people without the disability do or can comply, and iii) which requirement etc. is in the circumstances "not reasonable". It is for the employee to make out these elements.
Thus an applicant who alleges indirect discrimination, where all relevant employees are treated the same, as in the case of the alleged requirement here to put up with late payment of wages or leave the employment, must show that the requirement or condition in question is, in all the circumstances, not reasonable. If the requirement is not reasonable, it must not be persisted with.
In any case, where because of disability, the employee requires some special service or facility to carry out the inherent requirements of the employment, arguably as here where allegedly the employee needed artificial cooling and, also arguably, prompt payment of wages, the plain implication is that the employer must provide the service etc. or show that it would be an unjustifiable hardship to do so: s49D(4).

32 These are far-reaching legal requirements, and it is likely that, at least in small concerns, they are generally not well understood. Neither party seems to have been aware of them during the currency of the employment. That of course is no reason why, if it has been contravened, the parliamentary command should not be vindicated.

c)Carer’s responsibility discrimination
33 Likewise it is unlawful for an employer to discriminate against an employee on the ground of the employee’s responsibilities as a carer by subjecting the employee to any work-related detriment: s 49V(2). The concept of responsibilities as a carer includes actual and supposed responsibilities for a homosexual partner in a settled relationship: s 49S and the s4 definition of "de facto relationship".

34 A similar legislative approach is also taken to direct and indirect discrimination: s 49T. In the case of alleged indirect discrimination, as here, it is for the employee to show that the requirement in question is differentially onerous because of the responsibilities as a carer and that the requirement is, in the circumstances, not reasonable.

c)Victimisation
35 S50(1) provides:

"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: ...

(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 by reason that the discriminator ... suspects that the person victimised has [done so]."

36 The context suggests that the allegation would need to be made in circumstances where the person victimised was seeking or considering some remedy, formal or informal, against the discriminator. The apparent remedial public policy would favour a view that the proscribed ground would include an allegation made by a victimised employee to the employer or to another employee thought to be able to secure or influence an amelioration of the position of the person victimised. Thus here the complaints to Mr. Moore and Ms. Gawne the bookkeeper need consideration as well as that to the Workplace Ombudsman.

37 In assessing a possible breach of s 50(1)(c), the Tribunal must try to avoid both undue suspicion and naivety.

c)The Act focuses on discrimination
38 The legislative scheme of the Act and of the Administrative Decisions Tribunal Act 1997 does not permit a remedy to be given by the Tribunal where the facts disclose breach of some law other than the Act. That is not to say that the Tribunal should fail to assess the significance of other apparent breaches of the law in considering concepts like "reasonable" and "unjustifiable".

The air-conditioning dispute and Mr Buss’s related remark
39 Mr Monroe was not treated differently in relation to the air-conditioning than any other employee. It was generally turned off and all employees worked without its aid. If therefore there was any detriment suffered by Mr Monroe, it was in the nature of indirect discrimination: diminished as to heat tolerance by his HIV, he suffered more from the requirement acquiesced in or promoted by the company and Mr Moore that the available air-conditioning should not be used. The question then is whether that requirement has been shown to be "not reasonable".

40 In our opinion that has not been shown. There was no medical evidence to suggest significant implications for Mr Monroe’s health, as distinct from his comfort, if he were not cooled. The reality of Ms Beck’s medical condition and the alleged effect on her of air-conditioning was not challenged. An obvious and effective alternative to running the air-conditioning, namely the use of a fan with localised cooling effects, was at hand and was ultimately resorted to. Mr Monroe did not subsequently complain. The relevant circumstances included environmental considerations and the desirability of the practitioners of a learned profession acting and being seen to act in accordance with its received wisdom which disfavoured the use of air conditioning except in fairly extreme conditions.

41 In effect Mr Buss was telling Mr Monroe that his complaint that an aspect of his medical disability was aggravated by the physical working environment was an entirely personal matter; Mr Buss was suggesting that a workmate had no right to seek cooperation or accommodation from his colleagues in relation to such a matter. This would have tended to create an unpleasant workplace ethos for Mr Monroe amounting, in our opinion, to a detriment to him of a kind contemplated by the Act. Ex hypothesi Mr. Buss would not have so treated a person without such a disability. The question then arises whether the company and Mr. Moore can properly be said, by their inactivity, to have in some way adopted, condoned or given permission for such a discriminatory act.

42 In our opinion that cannot be said. Neither gave express or implied advance permission. Employers tend to lead by their example. Mr. Moore’s example is likely to have been to the contrary of Mr Buss’s evidently exasperated, discriminatory outburst. As to the failure to upbraid Mr Buss, Mr Moore may have interpreted the account of what Mr Buss had said in the way that Mr Moore described it in his evidence. In any case, Mr Moore probably saw Mr. Buss’s remark as incidental to the air-conditioning dispute which was resolved by Ms. Beck in a commonsense way, and considered it a case of "least said, soonest mended". That was a reasonable approach which did not indicate any implicit toleration by the company of the attitude shown by Buss. On the contrary Mr. Moore seems to have accepted that Mr Monroe had every right to raise his concerns and have a reasonable accommodation made.

The late payment issue
43 Industrial law does not look kindly on employers not paying their employees on time. Corporations law does not look kindly on a company’s controller(s) permitting it to continue to trade while unable to pay its debts, including debts to employees, as they fall due. Evidently the company could not pay all the employees on time. From the viewpoint of industrial law, every employee had an equal right to prompt payment. From the viewpoint of corporations law, no particular employee had a right to have the wages debt due paid in preference to any other employee. Had Mr. Moore observed the corporations laws instead of trying, humanly enough, to keep his enterprise and its associated jobs for the staff afloat, he would have invoked its insolvency provisions. That would have provided no relief for Mr Monroe’s pressing financial and medical needs.

44 The extent to which Mr. Monroe was suffering from untimely payment of his wages was likely greater than most of the other employees, although it is likely that a number of them were also in dire straits. It may therefore be said that a substantial proportion of the non-disabled employees could comply with the company’s "requirement" (if it was one - a question considered below) that they forego the right to prompt payment. Mr Monroe did not and probably could not comply with that alleged requirement.

45 But the company had no funds with which to ameliorate his condition. Absent the invocation of a remedy from a court with power to order a company’s director to meet its debts incurred while trading insolvently, Mr Moore was under no enforceable obligation to put the company in such funds from his own pocket.

46 However, for a public tribunal to conclude that the asserted requirement referred to was reasonable when it would have involved likely breaches of the law by the company may seem anomalous. This forces a closer analysis of whether, within the meaning of the Act, there was indeed any "requirement" by the employer.

47 In our opinion, there was not. Mr Moore’s contemporaneous statement of his position in the dismissal letter was:

"You were told that you had the options of either accepting the current situation or seeking alternative employment".

48 There was no requirement that the employees should, as a condition of their maintaining their employment, agree not to exercise any legal right that they might have had to seek to compel prompt payment. The timing of the dismissal, so soon after the company heard from the Workplace Ombudsman, is in that regard suspicious. However we think it unlikely that Mr Monroe’s mere invocation of that agency’s aid was an actuating factor in his dismissal. Mr Moore denied that suggestion and asserted that he did not know of that agency’s involvement when he sent the dismissal letter to Mr Monroe. There is good reason to doubt that: Mr Moore was clearly in touch with his office although physically absent on leave. However we think it unlikely that a senior architect would be so unwise or so disrespectful of lawful authority as to court trouble by victimising or implicitly having threatened to victimise an employee for resorting to an appropriate public agency. A senior architect such as Mr. Moore must have spent much of his professional life dealing with public regulators of one kind. It is generally understood that it is illegal to hinder or punish a person’s seeking legal redress from an appropriate public agency

49 Rather, Mr Moore on behalf of the company was simply stating the realities of the situation: the company could not meet its wage debts on time; the only practical options for the employees were to tolerate late payment or to seek income elsewhere.

50 However if that analysis is wrong and there was a general requirement that employees agree not to exercise their legal rights to prompt payment as a condition of keeping their jobs, in the circumstances and for the purposes of anti-discrimination law, in our view such requirement has not been shown to be unreasonable, even if at first sight such a conclusion appears anomalous. The Anti-Discrimination Act is not concerned to rectify all unreasonable decisions or to vindicate rights and obligations people may have under other laws: indeed, in large measure its purposes and effects are to modify such other rights and obligations. What is "reasonable" or not is to be tested for the purpose of determining whether a complainant’s rights under the Act to equal treatment should be regarded as having been infringed. Here, the question is whether the requirement in issue was reasonable as between HIV sufferers and others, in all the circumstances. In that context, the requirement did not become unreasonable merely because it involved the infraction of laws not concerned with anti-discrimination issues. It has not been shown to be otherwise unreasonable.

51 Mr Moore’s efforts to keep his practice alive were undertaken for his employees’ benefit as well as for his own. At the time most of his employees seem to have appreciated his efforts. Had Mr Moore had the company placed under administration or put into liquidation, that would not have alleviated Mr Monroe’s problems on account of his disability and his responsibilities to care for his partner. So far as the Act is concerned, it was not unreasonable for Mr Moore not to put the company in funds from his own pocket to pay Mr Monroe. He would likely have precipitated great problems in relation to the other employees if he had done so – Mr Monroe is unlikely to have been the only person with a carer’s responsibilities, or with other pressing financial problems.

52 Thus there was no unlawful discrimination against Mr Monroe.

Did the employee require some unprovided special service or facility to carry out the inherent requirements of the employment (s49D(4) etc) ?
53 We think not. In the case of Mr Monroe’s desire for a cooling aid, an apparently satisfactory one, the fan, was provided with reasonable promptitude in all the circumstances. He did not make clear to Mr Moore that he only needed cooling sometimes. It would, in any case, have been an unreasonable hardship for the company to have to use air conditioning when the fan would do and thereby create specific problems for Ms Beck and generalised resentment for other employees.
In the case of the late payment of wages, the lack of promptness did not mean that by reason of his disability or responsibilities Mr Monroe "would be unable to carry out the inherent requirements of the employment" cf s49D(4)(a). Nor, because of his disability etc., did he "require" any relevant "services or facilities ...not required by persons without [the] disability" or responsibilities. If he needed money in his hand to work, so did they. Every employee needed the wherewithal for the necessities of life even though what constituted those necessities would differ as between employees. There is in any case a question that is unnecessary to decide as to whether the concept of "services or facilities" would extend to being paid on time.

Carer responsibility
54 For the same reasons, there was no unlawful discrimination against Mr Monroe because of his responsibilities as a carer.

Victimisation
55 A fair reading of the dismissal letter and the fact that there had been very heated complaints by Mr Monroe indicates that two things were the final causes of his dismissal: the manner in which he had recently been seeking payment, and the contents of the email of 14 March. Mr Moore felt obliged to address:

"... the contents of your email of 14 March where you accuse both Debbie and myself of acting immorally and illegally"

He continued:

"I find it difficult to believe that you can make such false and inappropriate claims against your employer and a fellow member of staff..."

56 We have no doubt that in his heated conversations with both Ms Gawne and Mr. Moore, Mr Monroe would also have ventilated his claims of their "immorality" and his special and dire need to be paid because of his and his partner’s conditions and his responsibilities to provide the wherewithal for the latter’s medication. The content of what he said as well as the manner of his saying it would also have stung Mr Moore.

57 The conjunction of those subjects - immorality and Mr Monroe’s special needs - amounted, in our opinion, to an allegation that the company, Mr Moore and Ms Gawne were each committing an act, namely non-payment of wages earned and due, which, although the allegation did not so state, would amount to a contravention of the Act. Even if Mr. Monroe did not spell it out in express terms, the implication was overwhelming that it was the disabilities and/or his responsibilities which, along with the non-payment, elevated legal default into moral turpitude or greatly magnified such turpitude. In substance Mr Monroe was asserting, among other things, that the special needs of his partner and himself justified his being paid even if others could not be, and that it was immoral for this not to be recognised. Such amounted to an assertion of a state of affairs that would amount to a contravention of the Act.

58 S 50(1) (c) should not, in our view, be interpreted as confining the concept of an "allegation" to a wholly express one: implied allegations are often at least as telling as any other. Remedial legislation should have a reasonably liberal and, in any case a purposive, interpretation. The evident purpose of s 50 is to give the widest protection to ventilation of claims that in substance allege unlawful discrimination even if the claims are less than perfectly articulate or are actually ill-founded, provided they are made in good faith. There is no doubt that Mr. Monroe was acting in good faith.

It is true that that allegation was not the only or even a major reason for Mr Moore’s being spurred into dismissing Mr Monroe from his employment, but to our mind it cannot be denied that it was one of the reasons. Because of s4A that is enough.

59 Accordingly, Mr Monroe has made out his claim of unlawful victimisation.

The appropriate remedy
60 Mr Monroe’s loss was his after-tax wage for one month plus the superannuation contribution for that period. That seems to be about $4650. He should be awarded damages in that amount. (If that figure is said to be arithmetically wrong to any considerable degree, a party may so indicate and explain why within 24 hours.) It is not to the point that there were other operative reasons for his dismissal. A person asserting what would amount to a breach of the Act is given protection by s50. It is clear that the protection is widely cast and is intended to be real and effective. If there were no effective remedy or redress ordered merely because there were other reasons for the victimised person suffering the detriment, the protection would be hollow and not real. It is also important that the breach of the Act should be seen to be amply denounced by the Tribunal.

61 There is no cause to order more than that. From Mr Moore’s viewpoint the order would have the same effect as a substantial fine. The company’s and Mr Moore’s infraction of the Act was not the only reason for his dismissal, whether or not it was otherwise lawful and/or unfair; it was not in contumelious disregard of Mr Monroe’s rights; it was not even deliberate - it was likely made in ignorance of the legal position. The monetary compensation will operate as a sufficient recognition of the emotional distress which would have been caused to Mr Monroe

Other claims
62 Mr Monroe raised other complaints that may be dealt with shortly:

a)he was not permitted to take work home in order to ease the burden on him of caring for his partner, and this was unlawfully discriminatory.

The explanations given by or on behalf of Mr Moore establish that there were good reasons for differentiating in this respect between Mr Monroe and Ms Meller, and generally for not granting Mr Monroe’s request.

b)He was not afforded on-site training as had allegedly been initially agreed nor access to regular review of his work by Mr Moore.

Mr Monroe conceded that he may not have made clear to Mr Moore what his expectations of training were. There seems to have been no conscious denial of opportunity for work review. It would have been self-defeating for Mr Moore to have denied it. In any case there is no basis for linking any default or differentiation to any ground of unlawful discrimination.

c)He was not warned about inadequate work performance although such was alleged when he was dismissed.

There is no reason to prefer the evidence of Mr Monroe on this point to that of Mr. Moore but, in any case, there is again no basis for linking any inadequacy of warning to any ground of unlawful discrimination. This is not a case about merely unfair termination of employment.

A procedural note
63 Hopefully these reasons are expressed in plainer English than many judgments of courts (although no doubt there is still some way to go). It is particularly desirable for administrative tribunals intended to reduce formality that, where possible, that be so. Justice obfuscated is justice diminished. In like vein, there are relatively few legal references and quotations and paraphrasing has hopefully simplified some of them.

Conclusion and Orders
64 Except insofar as the complaint alleges victimisation contrary to s 50(1)(c), it is dismissed.

65 The complaint of victimisation is found to be substantiated.

66 The respondent is to pay the applicant damages in the sum of $4650 (subject to liberty to apply within 24 hours as to the arithmetical quantification of that sum).