Brian Ralph v Pemar Pty Ltd t/a Tuncurry Aluminium Windows

IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

GRAEME INNES AM

No. H99/24
Number of pages - 13

DATE OF HEARING:       6 July 1999

DATE OF DECISION:       5 August 1999

PLACE:        SYDNEY

#DATE 05:08:1999

Appearances

David Hillard, solicitor of Clayton Utz, appeared for the Complainant.

Chris Ronalds, barrister, instructed by Blake Dawson Waldron, appeared for the Respondent.

Order

Complaint upheld and damages of $3,ooo awarded.

GRAEME INNES AM

Introduction

On 21 April 1998 Mr Brian Ralph lodged a complaint against Pemar Pty Ltd t/a Tuncurry Aluminium Windows alleging that he had been discriminated against on the grounds of his imputed disability and/or the disability of an associate in breach of the Disability Discrimination Act 1992 (Cth) ("The Act").

Attempts at conciliation by the Acting Disability Discrimination Commissioner were unsuccessful and on 5 January 1999 he referred the matter to the Commission for hearing pursuant to s.76 of the Act. The hearing took place on 26 July 1999.

Prior to the hearing the respondent made a preliminary application that the complaint should be dismissed pursuant to sections 100 and 103 of the Act. It alleged that the Commission did not have jurisdiction to deal with the matter because Mr Ralph had previously lodged a complaint regarding the same issues under the NSW Anti-Discrimination Act. It also asserted that the complaint should be dismissed as vexatious and lacking in substance pursuant to sections 100 and 103 of the Act.

The decision was made by me on the papers, and brought down on 19 July 1999. I found that the Commission did have jurisdiction to hear the matter, as Mr Ralph had not lodged a "valid" complaint under the NSW Anti-Discrimination Act, and was therefore not precluded from pursuing his complaint by s. 13 (4) of the Act. I further found that, according to the test in Assal v Department of Health, Housing and Community Services [1992] EOC 92-409, the complaint was not lacking in substance, and that it was not vexatious, and that the evidence should be considered on the merits.

On the morning of the hearing Ms Ronalds of counsel appeared for the respondent, and advised that the respondent would not be appearing before the Commission. She advised that, despite my preliminary ruling, the respondent was of the view that the complaint was vexatious, and that because the Commission's determinations were unenforceable, and costs could not be awarded, to have the two directors appear before the Commission in Sydney would place too great a strain on a small business operating in Forster-Tuncurry, a small town some 300km north of Sydney.

I noted that it was my intention to proceed with the inquiry. It was clear that the respondent was on notice that the inquiry would continue. They had not made an application for the hearing to be moved to the Forster-Tuncurry area, or for evidence to be given by telephone, both of which would not have been opposed by the complainant and would have been considered favourably by me in the circumstances. The inquiry therefore took place, with evidence taken from Mr Ralph, and all other evidence contained in the referral report which was tendered.

Because the respondent did not appear at the inquiry I undertook the role of testing Mr Ralph's evidence through cross-examination. Whilst this was not an ideal situation it is not unusual for the Commission to undertake such a role, particularly when one or both party's are not represented at an inquiry.

My oral reasons for decision in this matter were given on 27 July 1999, which was the second day set aside for the hearing. These are my written reasons for decision.

2.       Background

Pemar Pty Ltd t/a Tuncurry Aluminium Windows is a small business, employing 3-4 people, in the Forster-Tuncurry area. The Directors of the company are Mr Peter Disher and Mrs Jan Disher who were married in about 1989. Mr Disher is the manager of the business, and Mrs Disher works in the office on a part-time basis carrying out administrative work. The balance of the administrative work is done by Stephanie Ralph, Mrs Disher's daughter and Mr Disher's stepdaughter.

Ms Ralph and Mr Brian Ralph (the complainant in this matter) were married in October 1992. At this time Mr Ralph was working on a part-time basis in a window-making business in Port Macquarie. On 20 September 1993 Mr Ralph joined Pemar Pty Ltd as the factory foreman, carrying out similar work, as well as co-ordination tasks in the factory, deliveries etc, on a full-time basis. This allowed he and his wife to move to Forster-Tuncurry.

Mr and Ms Ralph have a daughter Alexandra who was born on 30 June 1994. Mr and Ms Ralph separated in August 1995.

Mr Ralph remained in his position as factory foreman until his resignation on 16 September 1996, which took effect on 30 September 1996. At the time of his resignation his net salary was $460 per week.

During this period of the separation Ms Ralph had custody of Alexandra and Mr Ralph had regular access, once a week and on alternate weekends. As well, Mr Ralph often saw his daughter at work, where she attended with either Ms Ralph or Mrs Disher on many occasions.

Towards the end of 1995 Mr Ralph commenced a relationship with a woman named Leanne. This lasted for around six months. He sometimes stayed overnight at Leanne's home and was sometimes accompanied by Alexandra.

In about June of 1996 Mr Ralph commenced a relationship with Ms Karen King. There was a suggestion that Ms King had the hepatitis C virus, and this was confirmed in about November 1996. Mr Ralph sometimes stayed overnight with Ms King, and they began living together in about September 1996. Alexandra also accompanied him on some of these occasions.

Such a complex mingling of work and family situations, involving as it did marital disharmony, was potentially fraught with difficulties. Whilst Mr and Ms Disher, on their own evidence which was not disputed by the complainant, attempted to be even-handed about the situation, problems began in mid1996.

3. The Evidence

As indicated earlier, the only sworn evidence in the inquiry was that of Mr Ralph. Other evidence was contained in unsworn documents in the referral report. Whilst I have taken this other evidence into account I cannot, of course, give it the same weight as I can give sworn evidence.

3.1 Mr Ralph's Evidence

Mr Ralph gave evidence that he enjoyed his job. His work caused him to be inside most of the time. However, he did get outside to do deliveries which he particularly enjoyed.

Mr Ralph stated that there were no extra tensions or distancing in the working relationship between himself and Mr Disher from August 1995 to August 1996. He agreed that he did not socialise with Mr and Mrs Disher and Ms Ralph any more, but the working relationship stayed the same.

He stated that prior to August 1996 he had never been disciplined at work. Mr Disher had never "sat him down" to discuss work problems.

Mr Ralph asserted that there were no problems in his working relationships until Mr and Ms Disher, and Ms Ralph, discovered that Ms King may have hepatitis C. Once this information became known, which he said occurred in mid-August, the situation changed.

Mr Ralph stated that in mid-August Mr Disher approached him in the factory one morning and stated that he had heard some disturbing things about Ms King. He said he had heard that she had a criminal record, was an intravenous drug user and had hepatitis C. He said that Mr Ralph was putting both his workmates and Alexandra at risk, and asked him to have a blood test. Mr Ralph agreed to allay his fears, although he was confident that he did not have hepatitis C.

That afternoon Mr Ralph went home and had a conversation with the Hepatitis Council. He found that he could not be required by his employer to take a blood test. He also found that such a test would be inconclusive because there was a "window" of time after the transfer of bodily fluids in which the virus would not show up in the test, and Mr Ralph was still inside that window. So he did not have the test.

On 2 September Mr Disher again approached Mr Ralph in the factory during the morning. Mr Disher asked Mr Ralph if he had had the test, and Mr Ralph explained that he had not because he was still inside the "window" period. Following this answer Mr Disher opened his folder, and started working through a list of concerns about Mr Ralph's work that he had written down on a piece of paper. Mr Ralph was able to remember all of the incidents as he obtained a copy of the piece of paper from Mr Disher's folder later, after he had been advised that he may need to obtain proof of allegations.

The list read as follows-

prescription tep

doctors appointment

car rego

girl truck delivery

phone call to home

hep C

thursday friday

general leadership girls office.

Mr Ralph stated that Mr Disher spoke to him about each issue, but did not let him have any chance to explain the circumstances. Mr Ralph explained the list as follows-

Prescription Tep: Tep was the nickname in the family for Stephanie Ralph, and this issue related to a prescription which she had obtained so that Alexandra could have a hepatitis injection. Mr Disher wanted Mr Ralph to take Alexandra for that injection.

Doctors Appointment: In about July Mr Ralph stated that he had hurt a muscle in his back at work. Mr Disher had arranged an appointment with a doctor he knew who owned the factory which the business leased. However, Mr Ralph had decided to go to a different doctor who was a sports injury specialist. Mr Disher wanted to know why the appointment he had made had been cancelled.

Car Rego: the police had booked Mr Ralph that month because his private car was out of registration. He did not use his private car for work purposes at any time. However, Mr Disher alleged that not re-registering his car demonstrated carelessness.

Girl Truck Delivery: Mr Disher accused Mr Ralph of having Ms King in the company vehicle when he was carrying out deliveries. Mr Ralph agreed that Ms King had been in the vehicle once, but said that it had been after work on an occasion when he had asked Mr Disher if he could borrow the truck to pick up a wardrobe for Ms King. Mr Disher had agreed, and as a return favour Mr Ralph had delivered a window after work, and done some maintenance on another one. Whilst in the truck with Ms King he had been seen by Ms Disher and Ms Ralph.

Phone Call To Home: This related to a threatening phone call received at the office. Mr Disher alleged that it had been made by Ms King, but Mr Ralph denied this.

Hep C: Mr Disher again spoke about the need for a blood test, and the risk to Alexandra and employees at the factory. Mr Disher said that other employees had threatened to sue him if they caught the virus.

Thursday Friday: This related to Mr Ralph going home sick the previous Thursday, and not working on the Friday. There had been problems in the office between Ms Ralph and Ms Bagnell, her sister who was working there part-time designing a computer program for the office. Mr Disher said that he expected Mr Ralph to sort out such problems, that he was the foreman, and that he shouldn't go home even if he had a broken arm.

General Leadership Girls Office: Mr Ralph stated that this was really part of the same issue as the one above.

Mr Ralph stated that at the end of the conversation Mr Disher said that Mr Ralph needed to sort out his personal life. He said that he would put Mr Ralph on a month's trial while he turned things around. He said that Mr Ralph knew what he had to do. Mr Ralph stated that he took this to mean having to make a choice between his relationship with Ms King and his job. Mr Ralph received no written warnings or disciplinary letters.

Mr Ralph stated that he felt awkward throughout the conversation. He said that he felt pressured to resign.

Mr Ralph gave evidence that there was another conversation with Mr Disher on the afternoon of 9 September. Mr Disher again asked about the result of the blood test. Mr Ralph repeated that he had not had it. Mr Disher said that "the boys", meaning the other male employees Mr Garry Favotto and Mr Brian Payne, were worried about their health.

Mr Ralph said that he had spoken to Mr Favotto about the possibility of him having hepatitis C. Mr Favotto had made some inquiries as his wife was a nurse. Mr Ralph said that he offered to use a different glazing bucket, and that Mr Favotto told him "don't be silly". He stated that Mr Favotto was not concerned for his own safety.

Mr Ralph stated that when he had been sick at the end of August he had arranged for Mr Disher to collect Mr Ralph's keys. Mr Ralph normally opened up the factory. However, Mr Disher, when asked by Mr Ralph during the 2 September conversation, said that he would keep the keys for a while and open up himself.

After the conversations Mr Ralph said that the tension increased. He tended not to go into the office any more and sent Mr Favotto. Mr Disher increasingly went to Mr Favotto even though Mr Ralph was the foreman. Mr Ralph felt more and more isolated and alienated.

On 16 September Mr Ralph had had enough. He advised Mr Disher that he wished to resign effective 30 September. He said that he just wanted "all the trouble" to stop. Mr Ralph said that Mr Disher asked him if he was sure, and reminded him that he had a steady job at $600 gross a week which would be hard to replace. Mr Ralph said that he had made up his mind.

Mr Ralph agreed that, when he left, he was given a very good reference and a gift.

Mr Ralph stated that, before all of these things happened, he had no thoughts of leaving. He said that he was very content there.

Mr Ralph denied that he had told anyone at the respondent that he had a landscaping job to go to. He did not have such a job.

Mr Ralph stated that after a six week waiting period he went on to Social Security benefits of about $145 a week. He had been receiving $460 a week net whilst working for the respondent.

Mr Ralph stated that the ending of his job placed pressures on his relationship with Ms King. He further stated that his access visits with Alexandra decreased and then stopped altogether about November or December. Ms Ralph told him that this was because of Ms King's hepatitis C.

Mr Ralph commenced action in the Family Court to have access continued in about November of 1996. At about the same time Ms Ralph commenced an action to obtain an apprehended violence order against Mr Ralph. The Local Court awarded this order on 11 March 1997. Mr Ralph lodged his complaint with the NSW Anti-Discrimination Board on 25 March 1997. The Family Court proceedings were completed around April1998.

Mr Ralph stated that he had waited to lodge his discrimination complaint because he thought he needed to find out how Ms Ralph knew of Ms King's hepatitis C. This information came out during the apprehended violence order proceedings. He also said that he had been busy with other things and had not lodged the complaint earlier.

Mr Ralph explained that he looked for work after he resigned, but that all he could get was a week's trial as a landscape gardener. He remained on unemployment benefits until going on to sickness benefits in about September 1997, and then on to the disability support pension.

3.2       Evidence On Behalf of the Respondent

Mr Ralph's evidence was the only sworn evidence available to the inquiry. However, the evidence of the respondent has been put together from material in the referral report. It consists of solicitor's letters and unsworn statements which cannot be given the same weight as Mr Ralph's evidence.

The respondent's evidence is that Mr Ralph's work performance began to alter around June or July of 1996. Prior to that time he had been an excellent employee. Mr and Mrs Disher had made every effort to be even-handed in their dealings with Mr Ralph and Ms Ralph, both in the work place and in regard to their granddaughter.

It was asserted that in July and August of 1996 Mr Ralph's work habits had deteriorated. He had begun to arrive late, take long lunch hours and have unexplained absences from work. The respondent asserted that the deterioration in Mr Ralph's work performance was "well documented and undeniable" but no such documentation was made available to the inquiry.

He had also become threatening and abusive towards Ms Ralph in the office. These threats had involved Ms King and related to the restrictions being placed on his access to Alexandra. Ms Ralph gave evidence of phone calls, which she alleged had been received from Ms King, and threatening notes left at her back door. The notes were not produced in evidence.

The respondent asserted that Mr Ralph himself had advised of his possible hepatitis C status, and had offered to use a different glazing bucket. As a result, and following Mr Ralph's offer to have a blood test, Mr Disher encouraged him to do so for the safety of both Alexandra and his fellow employees.

Garry Favotto, an employee at the factory, also provided an unsworn statement which conflicted with this evidence. He stated that he had heard from another source that Mr Ralph's girl-friend had hepatitis, and he suggested that for his own sake he ask her about it. He also obtained a brochure on the subject for Mr Ralph to read.

Mr Favotto recalled the incident when Mr Ralph offered to use a different glazing bucket. He said that he was not worried by it and that he did not say anything.

Mr Favotto recalled Mr Ralph often going into the office and coming back to the factory "in a cranky state". He observed that Mr Ralph was mixing family problems with work, but was no more specific.

Joanne Bagnall, Stephanie Ralph's sister, gave evidence that she worked for the respondent from July to October 1996. During various conversations with Mr Ralph she stated that he told her that he wanted to get a new start, and that he had found a landscaping job further north. She encouraged him in this direction, as she knew that this was his profession and he was good at it. This conversation occurred towards the end of August, several weeks before he resigned.

Mrs Disher confirmed that Mr Ralph's work practices had dramatically changed, and agreed that Mr Disher had a discussion with him about it in early September. She stated that Mr Disher asked Mr Ralph if there was a reason for this and did not get a reply. Mr Disher then suggested that Mr Ralph think about "his direction" over the next month and then come and talk to Mr Disher about it further.

Mr Disher then raised the question of Alexandra's safety, and talked with Mr Ralph about her having a vaccination against hepatitis. It was at this point that Mr Ralph offered to go and have a blood test.

According to Mrs Disher, Mr Ralph advised Mr Disher when he resigned that he had a landscaping job to go to.

4.       The Law

The complaint involves sections 4, 5, 10, 15 and 123 of the Act, the relevant provisions of which state-

Interpretation

        4.(1) In this Act, unless the contrary intention appears;

...

disability, in relation to a person, means:

        (a) total or partial loss of the person's bodily or mental functions; or

        (b) total or partial loss of a part of the body; or

        (c) the presence in the body of organisms causing disease or illness; or

        (d) the presence in the body of organisms capable of causing disease or illness; or

        (e) the malfunction, malformation or disfigurement of a part of the person's body; or

        (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

        (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

        and includes a disability that:

        (h) presently exists; or

        (i) previously existed but no longer exists; or

        (j) may exist in the future; or

        (k) is imputed to a person.

        ...

Disability discrimination

        5.(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

        (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

Act done because of disability and for other reason

       10. If:

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

        (b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);

then, for the purposes of this Act, the act is taken to be done for that reason.

Discrimination in employment

        15.(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person's associates:

        (a) in the arrangements made for the purpose of determining who should be offered

        employment; or

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

        (c) in the terms or conditions on which employment is offered.

       (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:

        (a) in the terms or conditions of employment that the employer affords the employee; or

        (b) by denying the employee access, or limiting the employee's access, to opportunities

        for promotion, transfer or training, or to any other benefits associated with employment; or

        (c) by dismissing the employee; or

        (d) by subjecting the employee to any other detriment.

        (3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.

        (4) Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

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

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

Conduct by directors, servants and agents

       123(1)If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

        (a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and

        (b) that the director, servant or agent had the state of mind.

        (2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

        (3) If, for the purposes of this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to a particular conduct, it is sufficient to show:

        (a) that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and

        (b) that the servant or agent had the state of mind.

        (4) Any conduct engaged in on behalf of a person other than a body corporate by a servant or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the first-mentioned person unless the first-mentioned person establishes that the first-mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.

       (5) If:

        (a) a person other than a body corporate is convicted of an offence; and

        (b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;

        the person is not liable to be punished by imprisonment for that offence.

       (6) If a person attends a conference under Division 2 of Part 4, or appears before the Commission under Division 3 of Part 4, on behalf of a body of persons, whether corporate or unincorporate, any conduct by that person in so attending or appearing is taken, for the purposes of this Act, to be conduct of the body.

        (7) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:

        (a) the knowledge, intention, opinion, belief or purpose of the person; and

        (b) the person's reasons for the intention, opinion, belief or purpose.

        (8) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.

        (9) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

5.       Findings

There is no doubt that Ms King has a disability within the terms of s.4 of the Act, and that Mr Ralph is an associate of Ms King within the terms of that section. Further, there is no doubt that the disability of hepatitis C was imputed to Mr Ralph in the terms envisaged in s. 4.

There is also no doubt that assumptions, largely incorrect, were made by the Directors of the respondent, Mr and Ms Disher, about how hepatitis C could be transmitted. This caused them to be concerned, unnecessarily, about the safety of both the employees of the respondent, and about their granddaughter Alexandra.

The next question which I must determine is whether Mr Ralph was treated less favourably by the respondent, or by Mr and Ms Disher on its behalf pursuant to s.123 of the Act, and if so whether that treatment was on the ground of Mr Ralph's association with a person with a disability. Mr Ralph has the onus of proof on this and all other issues, but the disability of Mr Ralph or his associate must only be one of the reasons for the treatment, and not even the dominant or substantial reason pursuant to s. 10 of the Act.

I find that, with the best of intentions which appeared to be quite uninformed, the respondent did treat the complainant less favourably on the ground of his association with a person with a disability. I accept Mr Ralph's evidence about being pressured to have a blood test. I further accept Mr Ralph's evidence about the change in treatment which he received in the workplace following advice to Mr and Ms Disher of Ms King's possible hepatitis C status. It is irrelevant how they became aware of this information.

I accept Mr Ralph's evidence about the interview as between himself and Mr Disher. Mr Ralph's sworn evidence on this point was clear, and was supported by Mr Disher's "list", a copy of which Mr Ralph produced. I further accept Mr Ralph's evidence about the discussion on September 9, and about the general change of treatment in the work place. This again is sworn evidence, and is largely unchallenged by the evidence of the respondent, which is in much more general terms. Where it is challenged, I must give Mr Ralph's evidence more weight.

I am satisfied, based on all the evidence, that one of the reasons for the less favourable treatment was Ms King's probable carriage of the hepatitis C virus. This is asserted by Mr Ralph, and not disputed by the respondent.

The next issue which I must determine, which goes to the complainant's claim for compensation, is whether Mr Ralph's resignation was as a result of the less favourable treatment of the respondent, as it could then be construed as constructive dismissal.

Chris Ronalds in her book "Discrimination Law and Practice" 1998 edition on page 58 says:

"A person who leaves their employment because of acts of discrimination or harassment against them by their employer or for which the employer is vicariously responsible may be able to claim constructive dismissal and come within the concept of dismissal. The person must be able to establish that they would have remained in their position if they had not been subjected to the acts complained of, and the only or main reason for their departure was the discriminatory acts or the negative or detrimental effects the acts were having on them: Watkins v. Fryer (1995) EOC 92-667; Freestone v. Cosmo (1989) EOC 92-249."

To determine the reason or reasons for Mr Ralph's resignation I must try to assess what was in his mind at the time that he resigned. However, in my view this must be an objective rather than a subjective assessment. I am able to look at other factors rather than just considering Mr Ralph's evidence on this issue.

Mr Ralph gave evidence that he enjoyed his job, and that his relationship with Mr Disher had not changed following his separation from Ms Ralph. Mr Disher's evidence seemed to confirm this.

Mr Ralph gave further evidence that, had it not been for the less favourable treatment received once Ms King's hepatitis C status was known, he would not have resigned. He said that he resigned because he wanted to bring the trouble to an end.

However, part of the trouble was not going to come to an end with Mr Ralph's resignation, that part which related to his access to his daughter Alexandra. It is clear from evidence of the later legal actions taken by both sides that this was a serious bone of contention, and bearing those later legal actions in mind, as well as the unsworn evidence regarding the heightening of the dispute between himself and Ms Ralph over this matter, I find that he was an equal participant in this dispute. Whilst the original cause of the dispute was Ms King's hepatitis C status, Mr Ralph's reaction to Ms Ralph's actions was a family-related and not a job-related matter.

In my view, the dispute between Mr and Ms Ralph over access to Alexandra was as much a reason for Mr Ralph's resignation as the less favourable treatment of him by the respondent. As well as being pressured in the area of his work by Mr Disher, and wishing to avoid that pressure, Mr Ralph was pressured by the proximity of Ms Ralph, and the complexity of work and family issues. I am therefore not satisfied that the less favourable treatment by the respondent was the only or main reason for Mr Ralph's resignation.

6.       Relief

Having made the findings of discrimination by the respondent against the complainant as set out above I turn to the question of relief. The Federal Court in Hall v A&A Sheiban Pty Ltd (1989) 85 ALR 503 provided that the general principles of tort should be applied to the awarding of damages in this area.

Based on my findings I must make awards for the detriment which Mr Ralph suffered in his employment as a result of the less favourable treatment described above. However, I cannot make an award in Mr Ralph's favour for the loss of wages that he incurred, because I have found that his claim for constructive dismissal is not made out.

Mr Ralph gave evidence that he felt "awkward" during the interview on 2 September, and that he felt pressured by Mr Disher's actions, and his continual requests about the blood test. Mr Ralph felt so pressured that, initially, he agreed to take the test.

However, Mr Ralph did not adduce evidence, medical or otherwise, as to the ongoing effects of the respondent's actions.

Bearing the above principles in mind, as well as the issues set out above, and taking into account other awards in this area, I have determined that an appropriate amount of damages in this matter would be $3000.00.

On the application of the complainant I did consider a direction that the respondent provide a written apology for its discriminatory actions towards him. However, I have decided that such a direction is somewhat artificial, and that my findings of discrimination in this case should be sufficient.

7.       Determination

I find that the respondent Pemar Pty Ltd t/a Tuncurry Aluminium Windows, has discriminated against the complainant Brian Ralph in breach of the Disability Discrimination Act, and declare that the respondent pay to the complainant the sum of $3000.00 on or before 28 days from the date of publication of this decision.