Anti-Discrimination Decisions

[2008] TASADT 003

Catchwords:

Euqual opportunity - Victimisation - Whther conduct amounts to victimisation - Whether complainant subjected to detriment - Whether subjected to detriment because of a complaint about discrimination - Anti-Discrimination Act 1998 (Tas) s18

Representation:

Reasons For Decision

1. This is a decision in respect of a complaint by the Complainant that she has been victimised by the abovementioned Respondents because she made an earlier complaint ("the discrimination complaint") against the Second Respondent and one of its employees, Jenny Mayne, that she had been discriminated against in her employment on the basis of race and industrial activity.

2. At the request of the parties, I conducted this Inquiry immediately after completing the Inquiry into the discrimination complaint. I conducted the Inquiry in respect of this complaint on 20 November 2006.

3. On 10 January 2008 I dismissed the discrimination complaint. I have provided written reasons for doing so.

4. The background of the matter is comprehensively set out in my written reasons in respect of the discrimination complaint. Whilst an understanding of that background is useful to clarify the context of the complaint under consideration in these proceedings, it is not directly relevant to these proceedings. This complaint concerns events which took place after the making of the discrimination complaint.

5. The Complainant ceased work for the Respondent in February 2002. She made the discrimination complaint on 3 March 2002. This complaint was made by her on 20 November 2003.

6. The complaint, in essence, alleges that the Complainant was subjected to detriment by the Respondents in respect of their failure to redeploy or transfer her away from the Community Dementia team ( the position in which she was working during the period to which the discrimination complaint relates), to a suitable position in the employ of the Second Respondent. The complaint asserts that the Respondents’ treatment of her request for redeployment amounted to a "constructive dismissal". She asserts that this has occurred because her "discrimination case has angered them".

7. The events and circumstances which are relevant to this complaint effectively follow on from those described in my decision in respect of the discrimination complaint. On 25 January 2002, shortly before the Complainant left work purportedly as a result of the stress which had arisen from the circumstances in her work place, there was a meeting between the Complainant, her union representative and a senior manager of the Second Respondent, Wayne Fox. Also present at that meeting was her manager Jenny Mayne and Wayne Holt, a Human Resources Consultant for the Second Respondent. The Complainant, in her complaint and in evidence says that at that meeting she advised the representatives of the Second Respondent that she wanted redeployment, as she was finding her existing work place stressful. Whilst Mr Holt’s recollection of the meeting is vague, it is clear from what subsequently occurred and from correspondence that followed the meeting, that the possibility of redeployment was actively discussed.

8. It was common ground that following the meeting Mr Holt did, in fact, make enquiries about the possibility of the Complainant taking up a Community Nursing position at Kings Meadows Health Centre. The Complainant met with the manager of that centre, but the transfer did not eventuate. It seems that this was a mutual decision of the Complainant and the manager. From the Complainant’s point of view, the position was unsuitable because it was part-time only and would have resulted in a substantial decrease in wages.

9. Shortly after leaving work in February 2002 (i.e. 3 March 2002), the Complainant lodged the discrimination complaint. She also lodged a claim for workers compensation. The claim for workers compensation was disputed. The Complainant said in evidence that she sought legal advice, and on the basis of that legal advice decided that it would be too expensive to pursue the claim for workers compensation and, accordingly, did not do so.

10. From that time, until at least April 2003, she was absent from work on the basis of sick leave. In evidence were a number of medical certificates relating to part of 2002, which described the reason for her absence from work as stress related illness, and contained comments which suggest that redeployment ought be considered.

11. In the period between the Complainant leaving work, and April 2003, it seems that, apart from the communication with the Kings Meadows Health Centre, nothing was undertaken by Mr Holt or anyone else in the employ of the Second Respondent in relation to a potential redeployment or transfer, or indeed any other form of rehabilitation. Mr Holt’s evidence was that apart from making enquiry of Kings Meadows Health Centre, he could not recall following up on a view expressed by him at the meeting concerning redeployment. His evidence was that had the Complainant requested assistance, he would have provided it but that she had not done so. He also said that he knew that she was represented by her union and assumed that the union would provide assistance to her in dealing with the employment issues.

12. The Complainant gave evidence that in April 2003, Mr Holt had telephoned her to say that her sick leave was coming to an end and that she would have to put an application for redeployment in writing. In response, on 27 April 2003, the Complainant wrote to Mr Holt. The said letter was in evidence.

13. In the letter, the Complainant applies for a transfer. She makes it clear that she will need a supportive environment. She also applies for the balance of her leave and notes her intention to seek further psychological assistance. She encloses a copy of her curriculum vitae.

14. It seems that it was around this time that the First Respondent first became involved in the Complainant’s case. The First Respondent’s evidence was that in October 2002 he had assumed responsibility for managing the redeployment of "affected" workers employed by the Second Respondent. His evidence was that there were in place written guidelines for a procedure called "assisted transfer". These written guidelines were also placed into evidence. The document indicates that they appear to have been effective from at least 31 May 2000. Inter alia, they require any request for a transfer to be in writing and to be supported by the written approval of the employee’s immediate manager.

15. The First Respondent’s evidence was that prior to April 2003 he had little or no direct knowledge of the Complainant. He does acknowledge having some telephone conversations with Mr Holt, when Mr Holt discussed with him the need to place the Complainant in alternative employment. His evidence was that he explained to Mr Holt that finding alternative employment for the Complainant would be difficult due to a lack of suitable positions in the North of the State and further that if the Complainant wished to seek an assisted transfer, then the request would need to be placed in writing in accordance with the published guidelines. I gained the impression that these conversations occurred in April 2003, shortly before Mr Holt telephoned the Complainant as described above.

16. Mr Holt gave evidence that he did not remember receiving the letter dated 27 April 2003, but if he had received such a letter he would have passed it on to the Redeployment Unit, in particular the First Respondent.

17. The First Respondent acknowledged receiving a copy of the said letter and the Complainant’s CV. He says that he simply noted the request, but as he did not have any correspondence from the agency supporting the request, he was not able to take any further action. He says that he did however keep an eye out for any positions that may have been appropriate for the Complainant, in order to assist Mr Holt in his case management of the situation.

18. It is common ground that after the First Respondent received the Complainant’s letter, the Complainant telephoned him to follow up the letter. I can only conclude that she had been given the First Respondent’s name by Mr Holt. The Complainant’s evidence was that the First Respondent told her that her Department had not put in an application for her redeployment, and that he was waiting for it to do so. The First Respondent gave a detailed version of that conversation. His evidence also was that he explained to the Complainant that he had not received any official agency documentation regarding the request for an assisted transfer. He said that he explained to her that alternative positions at her level were limited and he believed that she acknowledged that fact. He says that during the conversation he recalls the Complainant mentioning the discrimination complaint and asking if he was aware of it. The First Respondent says that he responded by indicating that although he was aware of the existence of some sort of matter before the Anti-Discrimination Commissioner, he had no knowledge of the details or particulars of it and explained to her that its existence would be irrelevant to the processing of her application for an assisted transfer. He said that the Complainant informed him that she had been discriminated against by team members and would not go back to the same position within the Department.

19. Shortly after that telephone conversation, the First Respondent had a telephone conversation with Stewart Foote, a representative of the Complainant’s union. The Complainant refers to that conversation in her complaint, noting her understanding that the First Respondent informed Mr Foote that "it was difficult to place me and that it was not appropriate for me to return to my old work place in view of my ADC claim". The Complainant says that she felt after that conversation that she had been constructively dismissed.

20. The First Respondent’s version of that conversation is that he discussed with Mr Foote the advice which he had given to the Complainant concerning assisted transfers, he acknowledged that he said to Mr Foote that "it would be difficult to place (the Complainant) into an alternative nursing role", a comment which he recalls Mr Foote acknowledging and says that he said this because of his existing knowledge of the difficulty in locating positions at the Complainant’s substantive level and skill range. He denies mentioning the Anti-Discrimination Commission complaint in any way.

21. Mr Foote gave evidence. He recalled two conversations with the First Respondent which related to the Complainant. He says that in May 2003 he spoke with the First Respondent who indicated that he had not received an application from Mental Health Services for redeployment, and that he was awaiting a response. He had a second conversation in the same month in which the First Respondent indicated that he was uncertain whether the Complainant could be placed, because of her "limited clinical nursing skills".

22. In oral evidence he said that he could not attribute to the First Respondent comments about it not being possible for the Complainant to return to her old work place. He did not refer to any discussion concerning an anti-discrimination complaint.

23. It seems that little happened after those conversations prior to the Complainant lodging the complaint relevant to these proceedings on 20 November 2003. The First Respondent says that he believes that he may have kept an eye out for suitable positions, and may have advised Mr Holt of one at some point during this period. Certainly it seems that in late 2003, the Complainant was offered a position in the Psychiatric Unit at Ward 1E, but declined this position because she had not worked as a psychiatric nurse for a considerable period of time and was not satisfied she would get appropriate support in that position. It seems also that that offer was made during the course of conciliation of the original complaint, and the offer was not made again outside conciliation.

24. There was evidence of correspondence in February 2004, after this complaint had been made, concerning an offer by the First Respondent to the Complainant for redeployment and rehabilitation. This offer was refused by the Complainant. A significant amount of the evidence concerned the merits of this proposal and the reasons why the Complainant refused the offer.

25. In my opinion, it is doubtful that the events which post date the complaint are of any significance. The breach of the Act, which is the basis of the complaint, is that the Respondents effectively failed to redeploy her to a suitable position, because she had made the original discrimination complaint. That allegation was made in the complaint made on the 20 November 2003. The subject of my Inquiry therefore is whether or not I am satisfied that the complaint is substantiated, in particular, that the Respondents have victimised the Complainant by failing to redeploy her into a suitable position because she has made a complaint under the Anti-Discrimination Act. It necessarily follows that the events which are the subject of the complaint, are those which have occurred prior to the making of the complaint.

26. There can be no doubt, on the evidence, that the Complainant requested redeployment including by way of an assisted transfer. I am satisfied that it was made clear to her employer, in particular by way of Mr Holt, as early as January 2002, that she wished to be transferred to a suitable position on the same level and within the structure of the Second Respondent, but away from the Community Dementia Team. I find also that in April 2003 she made a written application for an assisted transfer to a suitable position. I find that the First Respondent was not aware of the Complainant’s wish to achieve an assisted transfer until shortly before that written application was made in April 2003. However, it is equally clear that after that application was made he was aware that it was the wish of the Complainant to transfer to another position.

27. I am also satisfied that the failure to accede to the Complainant’s wish to transfer to a position outside the Community Dementia Team, did subject her to a detriment, within the meaning of section 18(2), Anti-Discrimination Act. In my view there can be little doubt about that. It was clearly within the power of the Second Respondent to transfer the Complainant to another position. If such a transfer was to occur, then the First Respondent was the person responsible for implementing such a transfer. To that extent, therefore, she has been subjected to that detriment by each of them.

28. The real issue in this case, it seems to me, is whether or not the failure to transfer the Complainant in accordance with her wish occurred because she had made a complaint under the Act. Before I can find that the complaint is substantiated, I would need to be satisfied that any failure by the First Respondent, and the Second Respondent, to act on the Complainant’s request for transfer occurred because she had made a complaint about discrimination. The Complainant, of course, asserts that this was the reason for their inaction. The Respondents, on the other hand, deny that the fact that she had made a complaint about discrimination had anything to do with their response to her request, and assert that the failure to transfer the Complainant occurred for other reasons e.g. non compliance with the published transfer guidelines, a lack of suitable alternative positions, the rejection by the Complainant of positions that were offered to her etc.

29. A great deal of evidence was taken up in examining the adequacy of the reasons why a transfer did not occur. However, it seems to me that unless I am positively satisfied that the Complainant was subjected to detriment because she had made a discrimination complaint, it does not really matter whether the reasons advanced by the Respondents are adequate or not. For example, I suspect that for at least part of the period in question, neither party took any active step to advance the possibility of redeployment. I suspect that Mr Holt’s failure to take any action on the Complainant’s request for redeployment between arranging for her to speak with the manager of the Kings Meadows Health Centre in March 2002 and telephoning the First Respondent to discuss the situation in April 2003 occurred simply because of inattention to the case. If that was so, then the Complainant may well be entitled to be critical of that inattention, but that would not of itself establish a breach of the Act, particularly one under section 18. Before I could be satisfied that a breach of the Act had occurred, I would need to be satisfied that Mr Holt’s failure occurred not simply because of inadvertence or inattention, but because he was treating the Complainant in that way because she had made a complaint under the Act.

30. Having considered all of the evidence, I am not satisfied that the actions of any employee of the Second Respondent, including the First Respondent, in or about their response to the Complainant’s request for redeployment or transfer, occurred because she had made such a complaint. There was simply no evidence presented to me which would enable such a conclusion to be drawn. The Complainant’s case relies on an inference being drawn from the history of the matter that the treatment subsequent to making the original discrimination complaint occurred because she had made that complaint. In her written evidence she put her argument for such an inference in this way:

"In April 2003 Mr Wayne Holt phoned to ask me to put in writing my request for redeployment (14 months after having met with him to discuss this matter). At this stage I had been on sick leave, annual and long service leave because I could not return to my work site. There was not one phone call or letter re any possible positions. The only conclusion I could draw from such inaction by management was a disregard for my position. After the complaint of discrimination this lack of support was symptomatic of the employer’s preferred agenda to actively refrain from finding me another position in the Health system. There were many positions advertised for registered nurses in Launceston. I am a competent nurse having worked in many positions successfully. It is obvious I could be re-skilled into new areas with the appropriate support.

Mr Tony Martin confirmed my belief in April 2003 when he said on the phone that my work department had not put in an application for my redeployment".

31. There was no explanation from the Second Respondent as to why the Complainant’s written application for an assisted transfer in April 2003 had not been supported by appropriate approval from her manager. Despite this lack of explanation, it seems to me that it is simply entering into the realm of speculation to explain the lack of support for a transfer on the basis of her having made the original complaint. Indeed, I do not think that such an explanation follows logically. One would think that if the original complaint was a motivating factor, that a special effort would have been made to transfer the Complainant away from the problem area into another position where her complaint about such treatment would be nullified.

32. On the evidence presented to me, it seems that the two employees of the Second Respondent responsible for dealing with the Complainant’s request were Mr Holt and the First Respondent. Each of them gave evidence that the fact that the Anti-Discrimination complaint had been made had nothing to do with their actions in and about the Complainant’s request and her situation generally. I accept the evidence of each of them on that matter and find accordingly. It may well be that both men were not particularly proactive in seeking out another position, or in the case of the First Respondent, in following up the appropriate approval from the Complainant’s immediate manager, but this, of course, does not mean that either was acting in this way because of the Anti-Discrimination complaint. There was no direct evidence to support such an assertion and, as I have indicated, the evidence does not support an inference of that nature. In particular, in relation to the First Respondent, Mr Foote did not attribute to him any comment during their telephone conversations in relation to the Anti-Discrimination complaint and I find that the First Respondent did not make any such comment during those telephone conversations. There is no suggestion that the First Respondent knew of the Anti-Discrimination complaint prior to April 2003.

33. Furthermore, the actions of each man, whilst in outcome not adequate to comply with the Complainant’s request, demonstrate a positive desire to assist the Complainant to achieve a transfer. For example Mr Holt, somewhat belatedly, but of his own initiative, in April 2003 raised the matter with the First Respondent and then followed up by contacting the Complainant and asking her to put her request in writing. The First Respondent, despite not having the relevant paper work from the Complainant’s manager, did, it seems, continue to look for available positions. As I understand it, it was the First Respondent who initiated the proposal that the Complainant transfer to Ward 1E. These actions are not consistent with the alleged victimisation of the complaint.

34. On the whole of the evidence, therefore, I am not satisfied that any detriment to which the Complainant was subjected, occurred because she had made a complaint under the Act. It was not suggested that there is any other relevant basis for the complaint of victimisation under section 18.

35. Accordingly I find that the complaint is unsubstantiated. I dismiss the complaint.