Tribunal Denies Leave for Disability Discrimination Complaint

The Tribunal denied the claimant's request for permission to pursue a complaint alleging discrimination based on disability. The claimant alleged that he was treated unfairly due to his bipolar disorder. The Tribunal found that the complaint lacked substance and that the respondent had provided plausible non-discriminatory reasons for their actions.

CITATION: [NAME] v [COMPANY] [2010] NSWADT 172

DIVISION: Equal Opportunity Division

APPLICANT [NAME] PARTIES: RESPONDENT [COMPANY]: 101043

HEARING DATES: 6 July 2010

SUBMISSIONS CLOSED: 6 July 2010

DATE OF DECISION: 9 July 2010

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: ANTI-DISCRIMINATION – Leave to proceed

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

CASES CITED: [NAME] v Ekermawi [2009] NSWCA 388

APPLICANT In person REPRESENTATION: RESPONDENT P Arcus, barrister

ORDERS: Leave is refused for the applicant's complaint to be the subject of proceedings before the Tribunal.

REASONS FOR DECISION

Introduction

1 [NAME]' mother resides in [NAME] (the [NAME]) which is owned by the respondent. [NAME] complained to the [NAME] about treatment by [NAME] when he was visiting his mother. He complained that the manager of the [NAME], refused to provide him with information about his mother even though he was his mother's guardian. He also complained that [NAME] called the police after an incident at the [NAME] on 18 August 2009. [NAME] has bipolar disorder. He said that the treatment amounted to discrimination on the grounds of his disability in relation to the provision of services. The [NAME] declined the complaint on the basis that it lacked substance. The reasons the Board gave for that decision were that: The complainant has not provided sufficient information to substantiate his complaint that he has been treated less favourably by the respondent on the grounds of disability. The respondent has provided plausible and non-discriminatory reasons as to why they acted in the way that they did.

Permission needed to continue with the complaint

2 When a matter is declined by the President an applicant may request that the complaint be referred to the Tribunal. [NAME] did so in this case. If a complaint is referred, s 96 of the Anti-Discrimination Act 1977 (AD Act) states that the complaint cannot proceed unless the Tribunal grants leave for it to do so. The Tribunal has an open discretion to grant or not to grant leave for a complaint to proceed but in determining that question the Tribunal should be guided by what is fair and just in the circumstances: [NAME] v Ekermawi [2009] NSWCA 388. The criteria in s 92(1)(a) of AD Act are relevant to the exercise of the discretion but not necessarily determinative of a leave application. The matters listed 92(1)(a) include declining a complaint because it is lacking in substance, because another more appropriate remedy is available or because the respondent has taken appropriate steps to remedy or redress the conduct. The onus is on the applicant to persuade the Tribunal that leave should be granted.

The complaint

3 [NAME] was admitted to the [NAME] on 18 February 2009. At that time the relevant documentation was completed by her other son [NAME]. On 19 March 2009 [NAME] phone [NAME] requesting information relating to the care of his mother. He says he was told to ask his brother for the information because he was not his mother's guardian and for privacy reasons medical information could not be disclosed to him. There is a dispute about whether or not the [NAME] knew, from the time [NAME] was admitted to the facility, that [NAME] had an enduring power of attorney in relation to his mother and was consequently entitled to be given information about her health.

4 [NAME] says he kept a diary of events which records that he gave a copy of the enduring guardian document to the nursing staff on 18 February 2009. The diary also records that he left that document under [NAME]'s door on 7 March 2009 and rang her two days later to confirm that she had received it. According to the respondent, it was not until 11 April 2009 that [NAME] told [NAME] that he held enduring guardianship. [NAME] says she received a copy of that document on 29 April 2009 and that from that date [NAME] was provided with information about his mother's care. On 27th of May 2009 the Guardianship Tribunal revoked [NAME]' guardianship and gave his brother [NAME] guardianship over their mother.

5 The second part of [NAME]' complaint relates to an incident that occurred on the 19 August 2009 when [NAME] had visited the [NAME] with his girlfriend, [NAME]. According to the [NAME] was observed taking photos of injuries he said his mother had received at the [NAME] which involved pulling up her dress in front of staff and other residents. It is also alleged that he pulled his mother to her feet to check her shoulder movement. According to the respondent [NAME] was distressed by these actions and staff contacted [NAME]. When [NAME] refused to accompany [NAME] to her office he became angry and was requested to leave. [NAME] then contacted the police because of concerns she had about the safety of herself and the residents. Police attended the [NAME] but no further action was taken. [NAME] disputes this version of events and says that he did not lift up his mother's dress nor did he become angry when asked to accompany [NAME] to her office.

6 [NAME] said that he has not visited his mother for seven months but that he did visit her on Mother's Day, 9 May 2010. When asked what remedy he was seeking from the Tribunal [NAME] said that he would like the [NAME] to follow all their protocols and he would like to be able to see his mother. He says he does not like to visit his mother because of the treatment he received. The respondent says that [NAME] is able to visit his mother if he wishes to do so. On 20 August 2009 [NAME], an employee of the respondent, told [NAME] and [NAME] that if they felt uncomfortable visiting [NAME] at any time he should phone her and she would be present at the time of the visit. [NAME] has not taken up [NAME]'s offer.

7 [NAME] provided a document listing all the bodies to which he has complained. They include the Police, the Department of Health and Ageing Complaints Investigation Scheme, the Commonwealth and New South Wales Ombudsman and the Office of Aged Care Commissioner. He had a folder with him containing the correspondence with various complaint agencies but did not provide a copy of any of this material to the Tribunal. He said that none of these organizations had taken any action because he has not witnessed his mother being injured.

Merits of the complaint

8 In order for [NAME] to prove that he has been discriminated against on the ground of his disability contrary to section 49M of the AD Act he would have to prove four things: a) that he has a disability within the meaning of that term in section 4 and s 49A; b) that the respondent is providing him with a particular service; c) that that service was refused or provided on unfavourable terms; d) that any refusal or provision of services on unfavourable terms constitutes discrimination as defined in section 49B.

9 Disability. [NAME] says he has bipolar disorder and that [NAME] knew that because he had told [NAME]. He also said that his brother must have told nursing staff that he was bipolar but he is not sure when that happened. It is likely that if [NAME]' complaint were to proceed he would be able to establish that he has bipolar disorder and that is a disability within the meaning of that term in the AD Act.

10 Services. [NAME] nor the respondent defined the service which was being provided. In the absence of any submissions on this point it is not appropriate to come to any view. Without agreement as to the services that the respondent was providing to [NAME] it is not possible to determine whether those services were refused or were provided on unfavourable terms.

11 Discrimination. The first component of the test for direct discrimination in s 49B(1)(a) is the 'differential treatment' test. The treatment afforded to [NAME] must be compared with the treatment that would have been afforded to a person without his disability in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to [NAME], a Tribunal would have to rely on a hypothetical person in a comparable situation: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19. The second component is 'causation'. At least one of the reasons for being treated in the way he was treated must be his disability. In [NAME] v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 although interpreting the words 'because of' rather than 'on the ground of', the majority of the High Court explained that the accepted test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the 'true basis' (per Gleeson CJ at 102), 'genuine basis' (Gleeson CJ at 102), or the 'real reason' (McHugh & Kirby JJ at 144) for that treatment.

12 The respondent says that in the same or similar circumstances it would have treated a person who did not have bipolar in the same way that it treated [NAME]. A plausible reason for that treatment was firstly that the [NAME] was not satisfied that [NAME] held an enduring power of attorney until they were provided with a copy of that document. The exact date on which that occurred is not critical. Secondly, a plausible reason for asking [NAME] to leave the premises after the incident on 19 August 2009 was that his conduct had distressed his mother and that he had become angry when asked to accompany [NAME] to her office. The respondent says that these are the reasons for the treatment not the fact that [NAME] has bipolar. I am not aware of any requirement or condition that was imposed on [NAME] which would potentially be in breach of the indirect discrimination provisions in s 49B(1)(b).

13 Remedy. The remedy which [NAME] says he wants is for the respondent to follow its own protocols. However he did not specify what those protocols were and how they have not been followed. In addition he said that he wants to be able to visit his mother without being stared at or feeling that he is being 'set up'. [NAME] admitted that he visited his mother about two months ago without incident. He also declined [NAME]'s offer to accompany him during visits. [NAME] said that [NAME] is no longer the manager and that the new general manager is 'OK'. [NAME] did not say how the respondent could make him feel more comfortable when he visits his mother.

14 Conclusion. In my view based on material before me, [NAME] would have difficulty discharging the onus on him to prove that one of the reasons for the way he was treated is the fact that he is bipolar. There are other more plausible explanations for the respondent's conduct. In addition, the main remedy he seeks is, in a practical sense, already available to him.

Order

Leave is refused for the applicant's complaint to be the subject of proceedings before the Tribunal.

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