[2007] TASADT 10
Parties: |
EVANS, Paul v TREANOR, Brian and THE PARKSIDE FOUNDATION |
File No/s: |
66/2003, 67/2003 |
Delivered on: |
21 December 2007 |
Decision of: |
G Hay, Tribunal Member |
Catchwords:
Discrimination - Direct and indirect discrimination on grounds of disability - Hearing loss - Employment - Whether respondent employer given any adequate notice of disability - Knowledge – Anti-Discrimination Act 1998 (Tas) ss14, 16
Briginshaw v Briginshaw (1939) 60 CLR 336, Rogers v Hanusiewicz Medical Pty Ltd [2004] TASADT 14, referred to
Representation:
Counsel: |
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Complainant: |
In Person |
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Respondent: |
Geoffrey Tremayne |
Solicitors: |
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Complainant: |
In Person |
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Respondent: |
Jackson and Tremayne |
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Decision Number: |
[2007] TASADT 10 |
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Number of paragraphs: |
38 |
Reasons for Decision:
1.This decision arises from a complaint of both direct and indirect discrimination brought by Paul Evans against his former employer, the Parkside Foundation (‘Parkside’) and against his former “boss” or manager and director of Parkside, Brian Treanor, under sections 14 and 15 of the Anti-Discrimination Act 1998 (‘the Act’).It is essentially a factual issue to be determined by weighing the evidence of a number of witnesses.
2.The complaint was lodged on 23 May 2002 and alleged discrimination on the basis of the attribute of disability (section 16(k)) and irrelevant medical record (section 16(r)) and inciting hatred on the grounds of disability (section 19).The activity where the alleged discrimination occurred was claimed to be in the area of activity of employment (section 22(1)(a)).It was claimed that the discrimination occurred from April 2002 until late May 2002 and has continued.
3.The claim form also alleged a fellow employee of Parkside, Rick Gayewski, also discriminated against Mr Evans on the same basis as the other respondents.
4.On 5 July 2002 the Commissioner accepted some of the claim for investigation as it disclosed possible breaches of sections 16(k), 16(r) and 104 of the Act.The Commissioner named Mr Treanor and Parkside as the Respondents.She did not name Mr Gayewski as a Respondent. On that same date the Commissioner gave notice that she rejected that part of the claim that referred to inciting hatred on the ground it lacked substance pursuant to section 64(1)(a) and/or that part of the claim did not relate to discrimination or prohibited conduct – section 64(1)(b).As there was no application for review of that decision by Mr Evans that aspect of the claim lapsed.
5.Following an investigation, the Commissioner by letter dated 30 June 2003 wrote to the parties notifying them that part of the remaining claim was dismissed under section 71(1)(a) of the Act.This part related to a claim of discrimination against both Treanor and Parkside in the workplace on account of Mr Evans diabetes condition and the allegation of irrelevant medical record.As Mr Evans did not seek a review of this determination, this part of the claim lapsed.The remaining claim was sent to conciliation and was then referred to the Tribunal for Inquiry.
6.In summary, the balance of the issues raised in the claim form asserted the following matters possibly relevant to this Inquiry –
6.1 Since 1985, Mr Evans has suffered from ‘Meniere’s’ (variously referred to in the Inquiry as Meniere’s Syndrome or Disease) – ‘the disability’. It is common ground that the disability is a disease of the inner ear which in effect, makes it difficult for a sufferer to concentrate in an environment where there is loud background noise.It is a disease of the inner ear which causes tinnitus, typically affecting only one ear and giving a feeling of discomfort due to increased pressure in the inner ear and progressive loss of hearing, nausea, giddiness, vertigo and an inability to easily discriminate between individual sound sources when more than one sound source is present.
6.2 Since early April 2002 Parkside placed Mr Evans in a work environment which was virtually unbearable due to this disability and that the respondents knew or ought to have known about his disability and the effect of the change of environment on him.
6.3 On or about 3 April 2002, Parkside through Mr Treanor, moved Mr Evans from his private office into an office with a fellow employee and a large photocopier used extensively every day with high background noise.
6.4 Mr Evans informed Mr Treanor that it would be difficult to work effectively or cope very well in that situation.
6.5 Mr Treanor offered no alternative to the problem.
6.6 Mr Evans was distracted by recurrent interruptions in his new office and following 3 April 2002, on two occasions informed Mr Treanor of the “utter misery of working under those conditions”.[It is to be noted there was no specific or direct evidence to corroborate this assertion].
6.7 Mr Treanor offered nothing by way of changing the work environment.
6.8 On 3 May Mr Evans went to see a Parkside sponsored psychologist because of his stress.
6.9 On 7 May 2002 Mr Evans saw his GP who provided a medical certificate upon a diagnosis of anxiety and depression.Mr Evans left work and applied for worker’s compensation payments.
7.So it would seem that the assertion is that between about 3 April and 7 May 2002, his employer, through its servants, and Mr Treanor decided to move Mr Evans office environment when it knew or ought to have known that this amounted to less favourable treatment compared to other employees without the disability.
8.Mr Evans alleged: “At Parkside, since early April 2002, I have been placed in a work environment which is virtually unbearable because of this disability and I have suffered greatly because of these unfairly imposed work conditions on me as a sufferer of Meniere’s”.
9.Numerous directions conferences were convened to consider many preliminary matters prior to the Inquiry hearing.
10.It became apparent there was a key issue to be determined first.The parties were in agreement that the first and critical point to be considered was –
whether either respondent was put on sufficient notice, or at all, as to Mr Evans’ hearing disability, sufficient to constitute direct or indirect discrimination against Mr Evans?
11.The parties agreed to present evidence restricted to this issue on the basis that if the Tribunal found that the respondents were not aware or ought not have been aware of the disability then Mr Evans would be unable to substantiate his claim of discrimination and the matter would end there.
12.The respondents were represented by counsel.Mr Evans was not legally represented.
13.All parties gave evidence and each called witnesses to give evidence or tendered documents by consent.
14.Some of the facts were not in dispute –
14.1 From July 2000 until 20 September 2002, Mr Evans was employed as a full time Program Coordinator with The Parkside Foundation.
14.2 Brian Treanor was a director of Parkside and its general manager at relevant times.
14.3 Parkside is a not-for-profit company funded by State and Commonwealth Governments to provide a range of services to persons with disabilities.
14.4 Mr Evans took stress leave on Tuesday 7 May 2002.
14.5 Mr Evans resigned on 20 September 2002 from his employment with Parkside.
15.In this Inquiry Mr Evans bears the onus of proof, according to the civil standard, having regard to the approach established in Briginshaw v Briginshaw (1939) 60 CLR 336: Rogers v Hanusiewicz Medical Pty Ltd [2004] TASADT 14.The civil standard requires Mr Evans to prove his claim of a breach of the Anti-Discrimination Act on the balance of probabilities.That is, that it is more likely than not that the respondents or one of them breached their statutory obligations under that Act.
16.Discrimination to which the Act applies is direct or indirect discrimination on the grounds of a prescribed attribute.
17.Direct Discrimination.Section 14(2) provides:
“Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic”.
Section 16 lists prescribed attributes, including “disability” which is described as (among things) a total or partial loss of the person’s bodily or mental functions. It is apparent there is common ground that the disability is Meniere’s, a total or partial loss of hearing.
18.Indirect Discrimination.Section 15.
Mr Evans must show that Parkside imposed a condition, requirement or practice upon him (a requirement to work in a room with a photocopier) that was unreasonable in the circumstances and had the effect of disadvantaging him as a person with a hearing disability more than a person who was not effected by a hearing disability.
19.It is trite to say that the respondent should in usual circumstances have knowledge of the existence of the disability extant in the complainant. That is the significant question to be answered here.It requires appropriate evidence of likelihood.
20.The Tribunal heard an unusual amount of evidence over more than 3 days about Mr Evans’ condition and whether the respondents knew or ought to have known of its existence in April and May 2002 and prior to the lodging of the complaint.The Tribunal will set out in some detail but also in summary form, what it considers to be the more relevant evidence and attempt to analyse the strengths and weaknesses of the evidence in an attempt to decide if the claim has reasonably been made out or otherwise.The text contained within “[“ brackets is the finding or comment by the Tribunal upon the evidence given.
21.Mr Evans called his wife, JANE EVANS.
21.1 Mr Evans sought to tender her affidavit dated 10 May 2005.Mr Tremayne for the respondents objected to the affidavit on the basis it was essentially hearsay, and/or comment and in any event was essentially irrelevant as it did not contain any information that bore upon the question of the knowledge of the respondents of Mr Evans having Meniere’s disease.Mr Evans conceded it contained significant hearsay and irrelevant matters.He argued that his wife would give evidence of an incident at Claremont Hotel of a direct conversation with Mr Treanor which corroborates notice of the disease and knowledge with the respondents. (Paragraphs 11 and 11.4 to 11.6 of that affidavit).He also argued there was a second relevant part to her affidavit - that another employee of Parkside, Ms Belinda Smith said to Mrs Evans that she knew about Paul’s hearing problem – (Para 8).
21.2 The Tribunal ruled that the following evidence in chief of Mrs Evans was admissible.
21.3 “On attending a birthday party for Ms Belinda Smith at the Claremont Hotel in February 2002…….I was sitting next to Ms Belinda Smith (one of Paul’s work colleagues) at the time, and I commented to Belinda that it was, "difficult for Paul to hear me with his Meniere’s (or words to this effect) [Tribunal emphasis] and she acknowledged that she knew about Paul’s hearing problem"".
21.4“Brian Treanor was present at Ms Belinda Smith’s birthday party in Feb 2002 at the Claremont Hotel….. I saw Brian Treanor go up to Paul and I heard Brian say something like, "Are you going to Thailand for your honeymoon?”.Paul started swaying from foot to foot and he moved in closer……..Paul said, ‘Sorry?’ to Brian and Brian repeated himself again, and then Paul just has a bewildered look on his face and shrugged his shoulders and Brian again repeated himself and at not hearing again Paul just pointed to his ear and said, “Sorry can’t hear you” (or words to that effect) and Brian said, “that’s right” (“or you’re right” - words to that effect) [Tribunal emphasis].I just shrugged my shoulders towards Brian and I simply said to Brian, “yes we are” as I had heard his question 3 times.Brian Treanor just walked away after that”.
21.5 Under cross-examination she said that of the 20 people at the Hotel she could only recall Smith and Treanor. She could not recall if Ruth Parsons was present. She recalled the discussion with Smith because she pronounced “Meniere’s disease in a different way, it was a weird way”.[However, significantly she could not recall how she pronounced it].She denied that the only discussion with Smith was about their school days. Her discussion was for 3 to 4 minutes about Meniere’s.It was a noisy environment because of conversations by 20 people talking at the one table.She disputed that it was not Belinda Smiths birthday party.She disputed that was Belinda Smith’s daughter’s party. She said she was clear it was Belinda Smith’s birthday because she received a dildo and other sex oriented presents and they were not presents to be given to her daughter.She said she could not recall any conversation word for word and could not recall the name of the band playing.But she could recall the precise words about Paul having difficulty because of his Meniere’s.
21.6 [The Tribunal was concerned about the accuracy of her recall of events as in several places in her evidence in chief and other evidence she purported to quote accurately a conversation whilst qualifying the asserted direct quote with the words -“or words to this effect”. It suggested to the Tribunal she did not have a clear recollection of what was said other than in a general sense.Hers was not strong and weighty evidence, especially in the knowledge of her possible lack of objectivity by her proximity to the claimant]
21.7 She could not recall if it was that night Mr Evans sang with the band.She could recall almost precisely conversations that occurred almost 3 years but not other details of what happened that night.She made her affidavit in May 2005 over 3 years after the event, although she says she drafted it 18 months earlier for Mr Evans then solicitor.
22.The next witness was MARINA WEBSTER.
22.1 Her admissible evidence in chief was as follows.She worked at Parkside as a Support Worker.“I started work at Parkside late in 2000. Paul Evans was my coordinator at Parkside for about 18 months.I did induction training for staff for a week in late 2000”.There were 3 Parkside coordinators at the training session and she thought 6 new staff. “At the induction Paul came in to do a session.Before he began Paul told us that he had a hearing problem called Meniere’s.Paul told us that he could not hear if more than one of us talked at a time.”
22.2 Under cross-examination she disagreed the training session was for only 2 days rather than 5, “I am pretty sure it was a week”.She could not recall who else was there other than Evans.She swore her affidavit in July 2005 and had drafted it herself in about May 2005 and this was the first time she was asked to recall the events of late 2000. In re-examination she contradicted this and stated that she provided a statement to Mr Evans in similar terms in 2002.Whether it was 2002 or 2005, it was some time after the events in issue, when she was first asked to give presumably objective evidence of what was said in late 2000.The Tribunal does not suggest this witness deliberately obfuscated but in its view the evidence of this witness was not as reliable as it could have been because her lack of memory of events surrounding the training program other than what was contained in her affidavit and favourable to the claimant, was very poor.I was not impressed by her evidence.
23.Next witness LYNDA HOWSON
23.1 “Occupational therapist.Monday 19 Nov 2001 I attended a course run by Parkside Training Services at Bellerive Quay with the presenter being Brian Treanor …… Paul Evans was one of the attendees, in addition to his introduction he specifically requested that if possible during the course that only one person talk at one time as he was suffering a condition called Meniere’s Disease.My observations are that this was duly noted by the trainer and course attendees, and that by and large was adhered to during the course of the day….."
23.2 Under cross-examination she stated - “Brian stayed the entire day”.The witness was able to give fairly precise information about the contents of the training program.She swore her affidavit on 9 Nov 2004 and that was the first time she had been requested to recall the events of the training program.She kept a copy of her training course notes and certificate and had refreshed her memory from that when she created her affidavit. Mr Treanor was the facilitator at the session.There was another presenter in the afternoon and it could have been Ms Diane Parish, she could not dispute that.When shown a document she conceded it had her writing on it and both Mr Treanor and Ms Parish were presenters on that day.After lunch there were small groups for discussion and Mr Evans was present.He did not mention Meniere ’s disease in the afternoon.
23.3 In re-examination she was firm that Mr Treanor ran the course and was present for the entire course and signed her completion certificate.
23.4 [This witness was in many ways impressive in her evidence, but for reasons that follow and the strength of other evidence accepted by the Tribunal, it finds that whilst Mr Evans may have said the words she asserts, it is not satisfied they were said in the presence of Mr Treanor.]
24.Next witness JASMINE McMAHON
24.1“I was sitting with a number of other inductees at an information session held by Parkside in December 2001.Before he started presenting…. Mr Evans stated that he had Meniere’s Disease and if we could remember to ask questions one at a time as his condition made it very difficult for him to differentiate between individual voices and also background noise. I recall Rick Gayewski who works at Parkside was present at the session.Mt Gayeswki had just finished presenting his session and Mr Evans took over. I am unable to say if anyone else at Parkside knew Mr Evans had Meniere’s Disease".
24.2 Her evidence from cross-examination.The session was held in part of the old Repat Hospital, she could not recall if it was on 13/14 November as she had it in her diary for no specific date in December, although she conceded she could not dispute it was in November.She could not remember the names of any of the other 4 to 5 inductees present.When shown a note of attendees she could remember a person called Joe and Sharon. She conceded that Mr Gayewski took a session in the car park about strapping wheelchairs into vans.She also recalled him conducting an admin session which came before the wheelchair safety session.She was shown a copy of the training program agenda and conceded it was as she recalled the training.She conceded that her recollection of the order of speakers was in error but was firm that Gayewski was present in room when Evans made the statement.It was her evidence that there were changes to the presentations.She could strongly recall Mr Gayewski being present because she looked at him when he was leaning against a window and she looked to see his reaction because Evans made light of his disease “many ears”. She felt intimidated because Mr Gayewski stood behind and to her right and stayed in the room.
24.3 [Mr Gayewski gave evidence about the induction sessions on 13/14 November 2001 where he was a presenter.From the written program (Document R5) he identified he was there for the last session on both days because the vehicle was not freed up until 2.30 pm on each day.He was aware that two of the sessions had changed, namely Mr Evans session at 9.00am on the second day interchanged with the session with Ruth Parsons at 10.30 on the same day.]
24.4 [Mr Gayewski could remember Ms McMahon being present and had discussions with her especially the wheelchair loading where she asked to be excused because she was recovering from a back operation. He did not stand over her near the boardroom table. Participants sat around a boardroom table.]
24.5 After she resigned and left Parkside Ms McMahon sent an email to Mr Gayewski in June 2002 (Doc R7) where she stated, “Thanks Rick… it was great to work with you… all the best…”.
24.6 In re-examination about the training program she conceded that her memory may not be accurate as there were changes once or twice to the program and one presenter was late and Mr Gayewski had to telephone.There was some confusion to the actual program she said.
24.7 The Tribunal accepts Mr Gayewski’s evidence about this training session.It prefers his recall of the events of the training session. It accepts his evidence that his session was the last on each day and that being the case Ms McMahon must have been mistaken that Mr Gayewski handed over presentation to Mr Evans and thus was present when Mr Evans is said to have informed those present of his Meniere’s.
25.MR EVANS.
25.1 His affidavit was 55 pages in length. Notwithstanding the inquisitorial nature of the proceedings, the Tribunal took the view that the usual rules of evidence should apply where reasonably appropriate.A significant amount of the affidavit was inadmissible for various reasons and the parties agreed to reduce the admissible evidence to Parkside’s knowledge of Mr Evans Meniere’s and alleged discrimination of him respect of that condition.The Tribunal will summarise the salient and relevant parts.
25.2 He commenced employment with Parkside on 10 July 2000.He resigned on medical grounds in October 2002, 11 months before the expiration of his contract.He was employed full time as a program coordinator.
25.3 Prior to employment the company requested him to attend the Hopkins St Clinic for a pre-employment medical examination. He filled in a form with his medical history including diabetes and a hearing problem “Tinnitus, some hearing loss in right ear”. He later saw this medical form on his company file.There was no mention of “Meniere’s”.[The Tribunal considers this is a significant entry into his personal record and wonders why there was no more specific elaboration of his disability were it of such significance to him.]
25.4 Mr Evans stated that the symptoms he listed in the history fit within the definition of Meniere’s.[However, it is the view of the Tribunal that the use of those words in the history are unlikely to alert an employer not expert in hearing matters to the disability he now claims or its effect.The use of the words ‘some hearing loss’ is more likely to suggest a minor and non-intrusive problem.]
25.5 While at the Hopkins Clinic he took part in a hearing test and was informed his hearing was ‘normal’. [Again, this evidence is significant.It is the medically expert opinion upon which the employer might be expected to proceed without the need for further caution.It raises the question as to why Mr Evans did not seek to explore further any dissent he may have had to that opinion and result.There was no evidence he sought to have the ‘normal’ finding reviewed.]
25.6 Mr Treanor was the only operational director during his time with the company.Mrs Mary Treanor acted as “executive director” during that time.
25.7 He has suffered from hearing loss and tinnitus in his right ear since mid 1980’s.Tinnitus gives a high-pitched continuous loud sound in his ears and on occasions it can become very loud and he describes it as a “tinnitus or Meniere’s attack”.
25.8 During late 2001 during a company management meeting with Brian Treanor, Belinda Smith, Ruth Parsons and possibly Rick Gayewski present he suffered an attack and said to the management team, “Meniere’s attack or tinnitus attack”.He had to stop for several minutes until he had recovered.It is noted he could not be precise about what he said.
25.9 [Under cross-examination he was able to describe where the event occurred and they were at a round table.He could recall the event but could not place it any more accurately than between June to December 2002.]
25.10 [Later in evidence, Mr Gayewski, Mr Treanor, Belinda Smith and Ruth Parsons denied this was said at the meeting, they said it was untrue.]
25.11 Mr Evans referred to his disability variously as “tinnitus, Meniere’s syndrome, Meniere’s Disease, Hydrops”.To him it means that if more than one person is talking in a room then all he hears is ‘noise’ and he is unable to easily discriminate between various sounds and make sense of the various noises being received.Loud noises at certain frequencies affect him and can be physically painful.
25.12 [Under cross examination and following firm pressing, Mr Evans finally conceded that when he applied for employment he provided a CV noting he had insulin dependent diabetes but did not refer to his Meniere’s.He also noted in his CV that he had developed clear and concise communication skills, representing organisations in the public arena and public speaking. At no place did he refer to his Meniere’s condition.The Tribunal is of the view this is significant evidence.The Tribunal would have expected that if Mr Evans was sufficiently compromised to be troubled by the noise of a photocopier then he would have found it difficult to converse in public arenas and certainly would have felt it necessary to disclose the problem to any potential and prospective employer.His silence in the CV is more likely to project an image of a person who is not affected by a hearing disability. There is certainly no acceptable evidence within or inference to be made from this document that the employer should have been on alert in relation to the alleged disability.]
25.13 He stated that when he started work with the company he made Mr Treanor aware of his hearing disability.He did this verbally and often.Possibly the first time was after the first week but within 3 weeks of starting in a coordinators meeting he said.[In the view of the Tribunal these assertions were general and non-specific and really unhelpful.]
25.14 During the first week of employment he was taken to his office by the company Office Manager Mr Rick Gayewski and he asked Mr Gayewski if his telephone was ‘volume controlled’ because of his hearing problem.Mr Gayewski informed him that all company phones were volume controlled for hearing.
25.15 [In later evidence, Mr Gayewski said the ring tone was volume controlled but said he was unaware of the voice volume being controlled.]
25.16 Mr Evans stated that he informed Mr Treanor of his disabilities and because Mr Treanor was a qualified nurse Mr Treanor took more than a usual interest in his disabilities and his medications and his dietary needs to reduce his hearing symptoms.Mr Treanor, “authorised the company to reimburse him for the purchase of de-caffeinated tea bags for use at work”.Mr Evans purchased them and was refunded from petty cash.
25.17 On or about 17 July 2000 Mr Evans was in Mr Treanor’s vehicle being driven between Launceston and Hobart and Mr Evans told him, “about how my own disabilities motivated me understand the situations experienced by other people with various disabilities”.He said he clearly remembered speaking of Meniere’s and his diabetes.[However, it is to be noted that the detail of this alleged discussion (over some 3 lengthy paragraphs in his affidavit) seemed to revolve more around Mr Evans diabetes and less about hearing problem.] He said that 5 years later he could remember where the heater controls were positioned and the place on the highway where the discussion occurred.
25.18 The company coordinators team usually consisted of Ruth Parsons, Belinda Smith, Rick Gayewski, Mr Treanor and occasionally Anne Summers and Mr Evans, “I had many discussions with the company management team about my hearing disability”.He was able to recall one occasion when Ruth Parsons was directly opposite and Mr Treanor to his right and he spoke of his problems and identified each person and what hearing difficulty he had with that particular person.He also recalled another occasion in 2001 and the coordinators were discussing his Meniere’s when Belinda Smith said she did not know he had Meniere’s. [Anne Summers did not give evidence but the other named managers did and they all denied any such discussions.Their evidence may be said to lack objectivity on the basis they are employed by Parkside and might be concerned for the consequences to their positions should they give evidence contrary to the position of the employer.That is a consideration, but the Tribunal notes that all of those witnesses were cross examined extensively with significant latitude given, yet they remained unshaken in any significant degree in their evidence on this issue and generally.]
25.19 Mr Evans went on - On another occasion Gayewski made a joke about “Many ears”.[In later evidence, Mr Gayewski denied any such comment and said he was totally unaware of the condition.Mr Gayewski said that Mr Evans condition was never mentioned to him during Mr Evans employment at Parkside, he was not present at any meeting when Meniere’s was mentioned.The first time he learned of it was approx 4 months after Mr Evans lodged a workers comp claim for stress.The insurance underwriters informed Mr Gayewski that his workers compensation had been denied but Mr Evans intended to pursue actions stating Meniere’s was the cause of his stress and leaving employment.]
25.20 Para 72 to 78 of Mr Evans affidavit.For the first few months of employment in 2000, Mr Evans shared an office with Ruth Parsons for 3 out of each 5 working days.He had several detailed discussions with Mrs Parsons about his Meniere’s and she looked it up on the Internet.Mrs Parsons was able to observe his distress with hearing when there were competing sounds and they often spoke about his difficulties. She assisted him by not making calls when he was on the phone.He denied that he told Mrs Parsons that he was learning to lip-read to assist with a person known as Brendan.He said that was not true because he did not learn to lip read until November 2001.
25.21 Para 79 - 80.On or about July 2000 Ms Belinda Smith (one of the company coordinators) invited Mr Evans to her home and while he alleges there they had a long discussion with her about Meniere’s, he conceded that in a company coordinators meeting at a later time where he alleges he discussed his Meniere’s she said, "I didn’t know you had Meniere’s Paul!”.In his affidavit Mr Evans conceded that at any relevant subsequent time Ms Smith stated, "that she didn’t recall me having Meniere’s syndrome”.In his affidavit Mr Evans attempts to explain this by stating that Ms Smith always had a very poor memory.[From later evidence given By Ms Smith, the Tribunal was satisfied that her memory was not poor as alleged by Mr Evans.This allegation of itself is concerning in that it is was a belated attempt to discredit Ms Smith and the strength of her evidence].
25.22 [Ms Smith denied the discussions in her home as he alleged.She also denied any discussion about Meniere’s in any coordinators meeting. Her evidence was clear and concise and acceptable and preferable to the evidence of Mr Evans on the issues where they are at odds.]
25.23 Para 81.Several weeks after commencing work at the company Mrs Parsons and Ms Belinda Smith came to Mr Evans and said, “Bel and I have been talking to Brian.We know you have trouble hearing in here with your Meniere’s and so we’ve put to Brian that you do a room swap with Bel so you can have a room to yourself” (or words to this effect) [Tribunal emphasis]”.Shortly afterwards the move occurred.Mr Evans bought flowers for the two women.The next day or so Mr Treanor said about the flowers, “oh that is a nice touch”.In cross-examination, he denied Mrs Parsons arranged the move because she could not put up with his moodiness although he did agree that he was going through a marriage breakdown at the time and he broke down with Mrs Parsons on several occasions.He denied slamming the door and locking Ruth out.He explained that the door had an old latch that did not hold and if a private occasion was needed the door had to be locked.He recalls on one occasion the door unintentionally closed with the lock on. He answered a call and she had to knock to get in.He was on the phone with a client.Later he unlocked the door.
25.24 [Ms Smith evidence is that she was surprised about getting the flowers.She conceded that she and Mrs Parsons suggested the move and she assumed that is why she got flowers.The office move was as a result of Mrs Parsons complaining he had locked her out of her office.She observed this a couple of times. It was her evidence that the change of room had nothing to do with Mr Evans hearing issues]
25.25 [Mr Gayewski recalled a time when he came out of his office “because of a door slamming.Mrs Parsons said Paul had slammed the door and she was getting him a cup of sweet tea and she could handle it, but she could handle it”.He could not recall any incident of doors being locked. In later evidence, Mrs Parsons also understood Mr Evans was annoyed about clients coming in or out.She had no knowledge the move had anything to do with his Meniere’s condition.]
25.26 Para 86.At the company Christmas party Mr Evans sat next to Belinda Smith in late 2000.An auction was happening and he could not hear Ms Smith speak.He spoke to her about his hearing and deafness. [Ms Smith denied this.]
25.27 Para 87.Same function in 2001. Mr Evans was present and so was Jas McMahon and Ms Smith.Mr Evans left following making a statement to the group that he could not hear.He conceded there was a band and lot of general noise and spent a lot of time dancing and singing to the music.[Ms Smith had no recollection of Mr Evans saying anything about his difficulty.]
25.28 Para 88.During late 2001 at a management team meeting Mr Evans addressed each person individually about how easy it was to hear that person or lip-read them.He addressed Ruth Parsons, Anne Summers, Rick Gayewski, Belinda Smith and Mr Treanor.He said to Mr Treanor, “You’re very hard for me to hear Brian and your Irish lilt is impossible to lip read”.Ms Smith said she had no knowledge of this and denied it.Parsons, Gayewski and Treanor also strongly denied this allegation and were unshaken in their evidence about it.
25.29 Para 93.At another coordinators’ meeting his hearing disability was discussed and Mr Gayewski made a joke… “Don’t know why you’re complaining about your hearing Evans – you’ve got many ears haven’t you?”.He denied that Gayewski only ever referred to him as Paul rather than his surname.[Mr Gayewski evidence was that he never made that remark and never addressed Mr Evans by his surname and only ever referred to him as “Paul”.He also said he never saw Mr Evans use hand signals at all.He repeated he was unaware of Meniere’s until after Mr Evans left Parkside.]
25.30 Mr Evans conceded Mr Treanor was responsible for placing special heating and cooling into Mr Evans work space. However, he denied that Mr Treanor did everything he could to make Mr Evans comfortable and used as an example that he refused to allow Mr Evans use of company car until Mr Evans had sought a specialist report about his diabetes.[Mr Treanor gave evidence about this stating that the company required a specialist report effectively to ensure due diligence for liability issues and that the Transport department had required the specialist report rather than a GP report that Mr Evans seemed to consider was sufficient. The Tribunal finds that Mr Evans evidence about this issue is not convincing.He seemed to use it as an example of unreasonable conduct by the employer in unnecessarily requiring him to justify his health issues. In the view of the Tribunal Mr Treanor gave a satisfactory explanation and prefers that evidence over that of Mr Evans].
25.31 Para 97 – 98.Mr Evans gave evidence of telling the Alzheimer’s Association of his disability in late 2002 and also soon after starting work at Parkside he informed the manager of St Giles of his Meniere’s problems. While Mr Treanor conceded that for part of Mr Evans employment there was an arrangement between Parkside and Alzheimer Association to sub-contract some services, it is the view of the Tribunal there is no weight in this evidence to satisfy that imparting of information should impute knowledge to Parkside.In any event it was not corroborated in any way.
25.32 Para 110 – 112.The respondent knew he was suffering from anxiety and stress at work prior to taking stress leave in May 2002.“As specialists in disability care, the company management team knew or ought to have known that stress levels would likely exacerbate my hearing dysfunction and the respondent as a qualified nurse knew or ought to have known that stress and anxiety would exacerbate his hearing disability”.
25.33 In October 2001 Mr Evans was participating in Seniors Week and due to hearing difficulties he spoke with a Deaf Society person at a nearby booth about an “Auslan” course.
25.34 [Mr Gayewski evidence was that he attended the Seniors Week event with Mr Evans and Mr Evans acted as MC with a microphone and PA system quite loud “but this did not seem to affect Mr Evans”.Mr Evans conceded that Mr Gayewski recalled the day in question and observed that Mr Evans had “little difficulty” in communicating with him.]
25.35 Shortly after the Seniors Week event, Mr Evans spoke with Mr Treanor on two different occasions (about two weeks apart) in Mr Treanor’s office about his discussions with the Deaf Society person and generally about his hearing difficulties and whether the company would pay for the Auslan course.Mr Treanor agreed to pay for him to do it, but not other employees at Parkside.
25.36 Under cross-examination he denied that his employer specifically sought he participate in Auslan so that he could better communicate with a hearing disabled worker named Brendan, although he conceded there would be other benefits to the company in his participation.
25.37 Para 132.On 19 November Mr Evans attended a training course run by the company and Mr Treanor was the trainer /chairperson.Mr Treanor asked for introductions and Mr Evans said, “……….….. I suffer from a hearing disability called MD.This means that I cant hear if there is background noise. So please talk one at a time ………………..”. [Mr Treanor later firmly denied this allegation.]
25.38 He completed an Enrolment Form for the seminar and under a section dealing with Health – “Do you consider yourself to have a disability or any health issues that may impact upon your learning?”, he ticked “Chronic illness” and inserted “Blood testing in class regularly in class.Has to take glucose occasionally”.[In the view of the Tribunal this could only have referred to his disclosed and acknowledged diabetic condition.Further, the form contained a tick-box specifically available to cover hearing, but it was left blank. Mr Evans argued that the form did not require disclosure of ‘disabilities’ and hence no need to make the disclosure of Meniere’s and its significance.The Tribunal finds this unconvincing.]
25.39 The Tribunal prefers the evidence of Mr Treanor that Mr Evans did not make the announcement he alleged to the collective meeting.If it was made then it is more likely than not it was made in smaller break-out groups in the absence of Mr Treanor.
25.40 In late 2001, early 2002 Mr Evans attended a company meeting and informed the group of his disability.Another employee Katrina Wickham was present and in a subsequent discussion some days later Ms Wickham allegedly said, “Shit I’d forgotten about your Meniere’s, Paul, sorry”.On 8 April 2002, Mr Evans made a file note of the discussion.[Whilst it refers to his difficulty hearing during this meeting it does not recount the words allegedly said by Ms Wickham. Further, Ms Wickham did not give any corroborating evidence]. The file note was referred to Mr Treanor as the contents of the discussion between Mr Evans and Ms Wickham needed to be sighted by him.
25.41 Early in 2002 Mr Evans attended a birthday party at the Claremont Hotel and was approached by Mr Treanor but Mr Evans could not hear him because of background noise of talking.Mr Evans wife answered Mr Treanor’s question for Mr Evans.
25.42 On or about 4 April 2002 Mr Evans having recently returned to work from 2 weeks (stress) leave Mr Treanor informed Mr Evans he was to be moved out of his private office and back into his old office he had shared with Ruth Parsons.The room had since been converted into a photocopy room and was being used by David Mayhead.[It was of significance that the reasons given by Parkside for requiring the move were not disclosed by Mr Evans.]
25.43 Mr Evans told Mr Treanor it would “be difficult to work in the photocopy room (because of my hearing disability)”.Mr Treanor responded with “Look I know, (or words to that effect)”.Mr Evans was stunned and felt distressed.Mr Treanor ought to have known that this extra stress would likely exacerbate his hearing disability. Mr Evans was of the belief that Mr Treanor was not going to change his decision and that “as an allegedly qualified nurse, I believe he knew or should have known that stress would exacerbate or was likely to exacerbate my hearing difficulty".Under cross-examination Mr Treanor gave evidence he had no knowledge.
25.44 Mr Evans conceded he did not know what motivated Mr Treanor to make the move of office decision although the reason given by Mr Treanor was that as Mr Evans would no longer be working with clients then confidentiality was no longer necessary.[It was Mr Evans later evidence that he was still managing a number of clients requiring confidentiality, but this was not corroborated by any other witness.]
25.45 About two weeks later he moved into the photocopy room. “The noise of the photocopier and the noise that staff made when they were in the photocopy room made it virtually impossible for me to hear on the phone. I was very distressed by these working conditions.”
25.46 Mr Evans was unaware of management staff doing anything to alleviate conditions in the photocopy room although Mr Gayewski agreed to his suggestion to place a busy sign on the door to restrict disturbances in the room.However, he conceded clients would generally wander around and into offices and that the sign was placed because he wanted some privacy.
25.47 Under cross-examination Mr Gayewski said that he was told Mr Evans would be putting a sign up to stop clients interrupting in that room.That sign would have worked for staff as well.The Tribunal is unable to find that the sign was more likely than not placed on the door as an acknowledgment of Mr Evans hearing difficulties.There is acceptable evidence it was placed there to give general privacy when the sign was exhibited.
25.48 After Mr Evans left employment he met with Belinda Smith who informed him that she had been given a direction “…..not to contact you”.[Ms Smith made a contemporaneous file note of this discussion and its contents are quite at odds with the evidence of Mr Evans version of events at this meeting.Given the contemporaneous nature of those notes the Tribunal is unable to prefer the evidence of Mr Evans on this matter.
25.49 He confirmed he invited Mr Treanor and the coordinators team to his wedding on 19 March 2002 and at the reception said what a wonderful group of people they were.
25.50 Mr Evans wrote a song about Ros’s breasts.He denied he was criticised by Mr Treanor for the inappropriateness of it.He conceded that on another occasion he might have said, “I can’t make a joke here or I might be trouble with Dr Scutt”.
25.51 Not long after his wedding he was given a new role at Parkside.He said there were aspects that were unfair (about changing rooms) but did say he respected Treanor’s right to make the decision.Mr Treanor presented the change to other staff in a positive light and Mr Evans said that in the presence of others.The Tribunal finds this is significant evidence and is inconsistent with the likelihood the employer knew of the hearing condition and was unsympathetic to it.
25.52 “Prior to stress leave in 2002 my daughter came to live with us”.He denied he was stressed about that and that Treanor suggested counselling. He had seen psychologist Triffett in 2000 during the divorce. Treanor directed him to go and he had no choice. Parkside paid.Mr Evans further alleged that In 2002 he told Treanor he was having trouble coping in the room and so Parkside paid for him to be counselled by Psychologist Whitehead.
25.53 Prior to a car accident he had several attacks as a result of possible hypoglycaemia at home but not at work. There were 2 events at home when he became unconscious and on one occasion he phoned Treanor who called an ambulance and he gave Treanor a key to his house in the event of future episodes.
25.54 While at Parkside he was concerned about his jellybeans being taken and he gave Treanor a memo about that. He recalled another memo to Treanor about a client raiding his jellybeans.He conceded that he never provided a memo about Meniere’s condition or problems in relation to it.
26.RICK GAYEWSKI OFFICE MANAGER AT PARKSIDE for 8 years.
26.1 He was aware that after Mr Evans had left work that Dr Sale came to Parkside in July 2002 and spoke with Mr Treanor.
26.2 At the time of the office move, he was advised by Treanor that Evans’ office was to be moved but he was not told it because of Meniere’s.
26.3 He was unshaken about his lack of knowledge of Meniere’s before Evans left Parkside.
26.4 He has no recollection of attending any co-ordinator’s meeting where Mr Evans requested that only one person speak at a time because of his Meniere’s disease.
26.5 On 21 December 2001 Mr Gayewski and Mr Evans ferried chairs to a Christmas function and the cd player in Mr Evans’ vehicle was very loud but this did not seem to affect Mr Evans’ chatting and joking with staff while they unloaded the vehicle.
26.6 During March 2002 Mr Gayewski attended a 21st party at Claremont Hotel and recalled Mr Evans sing a song over the PA accompanied by a band.“The loud volume did not appear to affect Mr Evans as I noticed him chatting to a number of staff during the evening”.
26.7 On 15 March 2002 Mr Gayewski attended Mr Evans wedding where he sang a number of songs with a microphone and Mr Evans did not appear to be affected by loud sound.
27.BELINDA SMITH SERVICE MANAGER AT PARKSIDE for 10 years.
27.1 Ms Smith was at the same employment level, Level 5, as Mr Evans.
27.2 Recalls the meeting at Kingston as alleged by Mr Evans at para 282 of his affidavit.This was the first time Mr Evans mentioned Meniere’s to her. He stated to her that everyone at Parkside knew he had Meniere’s.[Despite lengthy and challenging questioning she was not challenged about her assertion that the first she knew of his Meniere’s was at Kingston on 27 September 2002.She was firm and unshaken that she had no knowledge prior to that time.] She confirmed that was the first time he had mentioned Meniere’s to her and that Mr Treanor was “going down”. She told him that so far as she knew she was not to contact him pending the hearing.She made a file note of this meeting and gave it to Mr Treanor within several days.
27.3 During the time she worked with and socialised with Mr Evans she did not see him display any symptoms of Meniere’s. She is familiar with those symptoms as her mother has Meniere’s.
27.4 One Christmas Eve Mr Evans came to a function at her sister’s house with a lot of people and background noise and she observed nothing to suggest hearing difficulties.It was a similar case at functions at the Claremont Hotel where bands were playing and gambling machines operating.She had conversations with him with a lot of background noise before the band started and during breaks when she had conversations with him and there were no difficulties.
27.5 She never had the impression that he had difficulty hearing her.
27.6 She did not observe him lip read or use sign language.He told her that he was undertaking an Auslan course and needed to communicate with Brendan a support worker. She never saw Mr Evans use Auslan except in an exercise with her daughter.
27.7 In Feb 2002 she had a birthday party and Mr and Mrs Evans were present.She denied Mrs Evans had a conversation with her about Mr Evans Meniere’s disease.She was able to recall in detail the nature of the discussion.Her evidence was that Mr Treanor was not present but he was a month later at her daughter’s birthday party.There is a conflict between her evidence about who was present at the party compared to the evidence of Mr and Mrs Evans.
27.8 In cross-examination she said there was no evidence to her of a hearing problem for Mr Evans.She recalled Mr Evans coming to her home one evening but could not recall sitting in front of a TV and then moving because he could not hear.She denied any conversation about her mothers’ Meniere’s at this time. She was unshaken in cross-examination.
27.9 She said she had no memory problems and was unshaken on this and the Tribunal accepts that.[Her evidence was that she and Mr Evans were friends at all relevant times and there was no evidence to suggest there was any particular falling out.This suggests that her evidence is objective and she had no motive to give unnecessarily adverse evidence against Mr Evans. There was extensive and convoluted cross-examination of her to try and discredit her, but in the Tribunal’s view that did not occur.Many allegations were put to her but she consistently denied and retained her evidence.In essence her evidence was to the contrary to Mr Evans on the issue of the knowledge of the respondents or servants or agents re Meniere’s disease. The Tribunal finds her to be a credible witness and accepts her evidence where it conflicts with the evidence of the complainant].
28.RUTH PARSONS
28.1 She said that Mr Evans stated in Sept 2000 that he had Meniere’s disease when she was sharing an office with him. He did not tell her it was a ‘hearing disability’ or that he had tinnitus. This occurred on 2 or 3 times. She discounted it because she did not see any signs. He made it clear it caused problems if there was a lot of noise from clients. She was a coordinator and on an equal employment line. She denied looking it up on the internet as she already knew what it was because a friend had it and was aware of the symptoms.She knew of 3 other persons with Meniere’s who displayed symptoms. Mr Evans never displayed or referred to any symptoms.She did not observe Mr Evans suffer from its symptoms.She had no recall of him referring to Meniere’s in coordinators meetings or with any other person from Parkside.She did recall discussion about office moves, that he was irritated by her loud voice on the phone and the fairly constant stream of clients coming into their shared office.Shortly after, he moved into an office on his own.She did not recall seeing him use hand signals. She had no recollection of any conversation with him about lip reading.
28.2 She found that on a couple of times he was upset about things and locked the door and she could not get in and towards the end of the time of sharing there were confidentiality issues and she went to Treanor to change rooms because of the difficulties of lack of privacy and he was moody at times.Once he slammed a door when he was angry and upset about being told by Treanor he had to get a medical certificate following a car accident in his work car. She denied any conversation that she requested a change of room for Mr Evans because of his Meniere’s.
28.3 She had nothing to do with the decision to place Mr Evans into the room with the photocopier and she had no management role with Parkside.
28.4 She too was surprised by the flowers and assumed it was to say thankyou for him getting a room on his own.
28.5 She could not recall the meeting where he told everybody about how difficult it was to hear or his personal assessment of her about how she was easy to understand or lip read.
28.6 She conceded she said that, “Mr Treanor was being an alpha male”, but not in the context suggested by Mr Evans.She also told him it was not a good idea to lock horns with Brian Treanor.
28.7 Again there was lengthy cross-examination of her and Mr Evans put to her his version of events.She was unshaken and appeared to be a reliable witness.She made appropriate concessions when necessary of various events and gave plausible alternatives to matters put to her.She corroborates that Mr Evans informed her of his Meniere’s problems in September 2000 but differs on the degree and effect.She saw no evidence that his Meniere’s affected him and she paid little regard to it.She did not inform anybody else, especially Mr Treanor of Mr Evans’ disclosures to her.Apart from making a statement for the Anti-Discrimination Commission she had nothing further to do with the complainant until Parkside solicitors sought further info in relation to Anti-Discrimination Commission or Anti-Discrimination Tribunal matters.It was not until the time of the Anti-Discrimination Commission requesting information that she informed Mr Treanor of her previous discussions with Mr Evans about Meniere’s.
28.8 The Tribunal finds her to be a credible witness and prefers her evidence where it is in conflict with the evidence of the complainant.
29.BRIAN TREANOR
29.1 The respondent then gave evidence. His case was he and Parkside management had no knowledge of Mr Evans’ Meniere’s condition and did not discriminate whether in relation to the symptoms referred to by Mr Evans or at all. He had no knowledge Mr Evans was having any difficulty at work because of hearing problems.
29.2 The company directors are he and his wife.He is managing Director of Parkside, a not for profit company owned by he and his wife offering services to persons with disabilities.Management teams do not have any input into management. Governance issues are dealt with by the company directors.
29.3 Mr Evans, Mrs Parsons, Ms Smith were program coordinators and Mr Gayewski the office manager.
29.4 His statement to the Anti-Discrimination Commission dated 3 October was sworn to as his evidence in chief and he gave further evidence responding to assertions made by Mr Evans in his evidence, and as follows.
29.5 Paul went on his honeymoon and while away it was apparent there were no referrals coming in to that part of the program for which he was responsible.He decided to transfer him to other duties and placed him into a room with Mr Mayhead and a photocopier.He had no knowledge of Mr Evans’ Meniere’s.
29.6 Parsons was finding it difficult to share with Mr Evans and she and Smith came up with a solution with which he was happy.
29.7 Mr Treanor could not recall the trip to/from Launceston.He did make several trips to Campbelltown with Mr Evans but there was no conversation about Meniere’s in any of those trips.
29.8 Decaffeinated tea was accommodated just as any similar request by other might be accommodated.
29.9 He saw no evidence of hand signals being used by Mr Evans.
29.10 Mr Evans had many issues with his employment. He requested 5 days rather than 3. This was agreed.Heater and air cooler were supplied by agreement. For his diabetes he gave Mr Treanor a key to his house.
29.11 In relation to Mr Evans’ assertion that he was unreasonably restricted from driving by Parkside, Mr Treanor said, “After a car accident I declined to let him drive until medical advice.Letter from his GP did not coincide with our observations re blood/sugar levels. Transport Department required a letter from a specialist.Once sorted he was permitted to drive again".
29.12 In relation to the reason why Parkside paid for Mr Evans to attend an Auslan course Mr Treanor said, “Parkside paid for Auslan.Brendan is a deaf employee and uses Auslan and Evans was encouraged to do it to converse with Brendan.Only useful for other users of Auslan".
29.13 At no time did Mr Evans refer to Meniere’s and his difficulties with hearing.Just before he went on stress leave he wrote a memo about his jellybeans not being secure and in relation to his diabetes and that was dealt with by return memo.At no time did he write a memo about his Meniere’s or difficulty with the photocopier. [The Tribunal is of the view that it is not logical to make written complaints about a relatively serious issue such as his glucose jelly beans being taken, but not make any written complaints about the effect of the photocopier and other noises on his hearing]
29.14 Others had worked in the office with the copier.When he was aware of Mr Evans issue re the photocopier he had it removed.
29.15 Mr Treanor is a registered nurse. Tinnitus involves a ringing in the ears.He has no other knowledge of this topic.He had noted the pre employment disclosure document and then the audiogram that hearing was normal.
29.16 Several times Mr Evans asked Treanor to repeat himself because of his Irish brogue.Of all the witnesses Mr Evans cross-examined, it was this witness whom he asked to repeat his answers on several occasions.
29.17 If Mrs Parsons knew of Meniere’s she did not impart that to him.Mrs Parsons is an employee.Her knowledge did not represent the knowledge of the two respondents.
29.18 Mr Evans did not speak of his Meniere’s at the commencement of a training seminar.
29.19 In 2000/2001 there was a connection between Parkside and Alzheimer’s Association.It was a sub-contracting relationship. “Of federal funding we agreed to fund an Alzheimer’s existing service, it was a partnership”.Mr Evans was employed by Parkside and as part of his duties he was seconded to Alzheimer’s Association for 2 days per week.
29.20 On several occasions during Mr Treanor’s evidence in chief Mr Evans interrupted and stated that he was having great difficulty hearing and required repeats.In the view of the Tribunal Mr Treanor was no more difficult to hear than any other witness and there was no other noise when he was speaking.The Tribunal was left with an impression it was unnecessary emphasis being placed on any hearing impairment.Mr Evans had no such concerns with any other witnesses.
29.21 In the view of the Tribunal, the whole nature of the cross-examination went to establishing that all respondent witnesses had colluded.It is correct they were all employees of the respondents and their lack of objectivity might be questioned but the Tribunal is of the view that was not established.
Further findings and determination
30.The Tribunal accepts the evidence of the respondent’s witnesses where the evidence is at odds to the evidence given by the complainant and his witnesses.
31.The Tribunal accepts the submission by the respondents that much of Mr Evans evidence appeared rehearsed and the fact he could remember minutiae detail that would have been insignificant at the time, such as a discussion on the Midlands Highway at the ‘red tree’ and the position of the heater dial in the car many years previously, yet was unable to remember the date of his more recent marriage, a presumably more significant date, is just not credible.
32.The Tribunal also accepts the submission of the respondents that it would be surprising and incredible that an employer who was prepared to pay for counselling for non-related stress issues, provide a heater and cooler, special tea and so on would require Mr Evans to work in an environment where the presence of a photocopier affected his personal comfort and ability to work.
33.The Tribunal is not satisfied that information imparted by Mr Evans about Meniere’s to fellow workers even though they be members of a general coordinators team, or to others not closely connected to the respondents is evidence that either of the respondents knew or were aware of his hearing problems.The acceptable evidence supports the finding that Mr Evans was not performing in his employment and Mr Treanor decided to transfer him in his duties. In Mr Evans’ new duties he did not need a private office, hence was transferred to an office with Mr Mayhead and a photocopier.At the time of the office move neither respondent was aware of Mr Evans’ Meniere’s disease.
34.There is no evidence to support the contention that Mr Evans, by being placed in the room containing the photocopier and another occupant, was treated less favourably than a person who did not have a hearing attribute or characteristic.The room had been used by others for a significant period of time and was being used by a fellow employee at the time he was placed there.
35.Mr Evans was placed in that room because of a change of operational needs by the employer and a change in the duties of Mr Evans.The Tribunal cannot find that he was placed there for any reason to do with his hearing loss.Simply because he was suffering from Meniere’s and placed in the photocopy room does not support a claim of direct discrimination.
36.For indirect discrimination he must show that the requirement to work in the photocopy room with the photocopier was unreasonable and disadvantaged him more than a person who did not have the same and particular disability.
37.The claimant has not satisfied the onus that the requirement to work in the room with the photocopier was unreasonable and that he was disadvantaged more than a person without a hearing disability.
38.The claimant has been unable to satisfy the Tribunal that the respondents more likely than not were put on sufficient notice, or at all, as to Mr Evans’ hearing disability, sufficient to constitute direct or indirect discrimination against Mr Evans.On the balance of probabilities the claimant has not made out his claim and it is dismissed.