IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
JUDGE: PETER JOHNSTON (Inquiry Commissioner)
Number of pages - 31
DATE OF HEARING: 1-3 April and 8 May 1997
DATE OF DECISION: 16 July 1999
Mr Flower instructed by the Disability Discrimination Law Advocacy Service for the complainant
Mr Burchardt instructed by Phillips Fox for the respondent
Commissioner found for the complainant and awarded him $22,000 plus a written apology.
By referral dated 24 October 1996, the Disability Discrimination Commissioner referred this matter for inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") under s.76(1)(b) of the Disability Discrimination Act 1992 (Cth) ("the Act" or "the DDA").
In essence, this matter concerns a complaint of discrimination and harassment in employment on the ground of the disability of the complainant, Mr Peter McDonald. The disability in question is Multiple Sclerosis ("MS"). The respondent to the complaint is Mr McDonald's former employer, the Hospital Superannuation Board ("the Board").
THE LEGISLATIVE FRAMEWORK
The following sections of the DDA are relevant to the complainant's case:
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 has the meaning given by sections 5 to 9 (inclusive).
discriminate has the meaning given by sections 5 to 9 (inclusive).
5(1) [Less favourable treatment] 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.
5(2) [Where different accommodation required] 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.
(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.
15 (1) [Offer of employment] 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.
15 (2) [Conditions of employment] 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.
15(3) [Domestic duties excepted] 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.
15(4) [Inability to carry out job] Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by am 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
(a) 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.
35(1) [By employer] It is unlawful for a person to harass another person who:
(a) is an employee of that person; and
(b) has a disability;
in relation to the disability.
35(2) [By fellow employee] It is unlawful for a person to harass another person who:
(a) is an employee of a person by whom the first-mentioned person is employed; and
(b) has a disability;
in relation to the disability.
122 A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.
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.
(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.
3. EVIDENCE FOR THE COMPLAINANT
3.1 Evidence of the complainant
The complainant, Mr McDonald, gave evidence as follows.
He applied for the position of an administrative officer class ADM2 with the respondent in 1990. With his application he sent a letter dated 22 March 1990 (C4)1 in which he disclosed he had the condition of MS. He was appointed to that position on a temporary basis for 12 months. His general practitioner, Dr Cormie, provided a letter dated 4 April 1990 indicating that his MS was quite stable at that time. He was made permanent on 28 August 1990. He received regular annual assessments in the course of his employment. His initial supervisor was Ms Andrea McFarland. In mid-1992 he was seconded to a project in the data integrity section of the Board for a period of about 12-14 months. In his first assessment Ms McFarland had rated the various aspects of his performance as either satisfactory or better than satisfactory in the period from 9 April 1990 to 28 February 1991 (C9).
The complainant was promoted to the level of ADM3 on 1 August 1991 (C11). He was again assessed in respect of the period February 1991 to February 1992, during the last 6 months of which period he was classified at the level of ASO3-1. His new supervisor was Mr John McKelvie. Mr McKelvie had assessed him in most areas as outstanding (C13). His secondment to the data integrity section occurred after his promotion. In his work in that section his condition of MS had affected his vision when looking at computer printouts with different colours, a condition described as optic neuritis. Because it had been difficult for him to try and read the light print, he sought a change in his duties and went to the pensions and insurance section as an Assistant Team Leader ASO3. He had been interviewed for the position and there had been other candidates. He was responsible to the Team Leader, Ms Janet Masson. He had been recommended for that position by Mr Robert Swann and it had been approved by the General Manager, Mr Ernest Bennett (C15). Ms Baylie, the Manager, Member Services, occupied a position above Ms Masson. Ms Baylie reported to the General Manager, Mr Bennett. Mr John Frewin was the Manager Personnel and his position was established at the same level as Ms Baylie's.
Mr McDonald had worked with Ms Masson before whilst in his ADM2 and ADM3 positions. At that earlier period, Ms Masson was living virtually around the corner from him. They established an informal car sharing arrangement. On some days Ms Masson drove because Mr McDonald preferred not to, due to his condition of MS. At that stage, according to Mr McDonald, he and Ms Masson were friends. The car pooling arrangement had started in 1991. Mr McDonald would drive to Boronia where Ms Masson lived and they would then proceed to Camberwell. When Ms Masson moved from Boronia to Fern Tree Gully, the arrangement continued. Prior to Mr McDonald going to the data integrity project there had been no animosity between him and Ms Masson.
When he moved from the latter project to his new position, he had been happy to work under Ms Masson at first. He had however taken exception to the appointment of another officer, Ms Helen Murnane, to a position of Team Leader in one of the original teams. He had applied for the position himself. The job advertisement had been for a full-time position, but Ms Murnane had been appointed to a part-time position, working 4 days a week. Mr McDonald had sent a memorandum to Ms Baylie seeking to appeal against the decision. Nothing resulted from his appeal. He therefore took it up with Mr Bennett and also spoke to Ms Baylie and Ms Murnane. Nothing, however, happened (C17).
The complainant commenced his new position in the pensions and insurance section in May 1993. Besides his administrative duties, Mr McDonald was also a member of a group formed to deal with management in respect of matters such as enterprise bargaining agreements. He was one of 4 staff representatives.
He had been appraised satisfactorily in respect of the period 1992-1993, again by Ms McFarland (C18).
The car pooling arrangement had ceased when Mr McDonald returned from a week's leave in early July 1993. It had been Ms Masson's decision not to continue. She informed him in a meeting on 21 July 1993. That was the first he knew of it. The meeting had taken place in Ms Masson's office. It arose because Mr McDonald had had a discussion with a fellow assistant team leader, Ms Leanne Skelton, and suggested that she should be careful about writing notes concerning other staff members. Ms Skelton went into Ms Masson's office and told her what had been said. Mr McDonald had been called in at the end of the discussion between Ms Masson and Ms Skelton. As recorded in evidence:
"Ms Masson asked me what my problem was; was it with the Board? Was it with the people I'm working with or was it with her? and I said, "It's with you." I then proceeded to explain my disappointment that Ms Masson had advised me that she was no longer coming to work with me. I found out the day before when I asked her if she wanted a lift in tomorrow, so the day before or the day before that, it was within days. She said, "No." I found that she indeed had her own car in. So the pool arrangement - she wasn't able to tell me that it was over even at that stage. After I spoke to her about that, Ms Masson started talking about work issues..."
The only explanation Ms Masson had offered was that she was scared that Mr McDonald and his wife would sue her if there was an accident. Mr McDonald had received that with disbelief.
They had also discussed work issues. Ms Masson expressed concern about the fact that Mr McDonald had been involved in staff issues and wasn't able to get his work done. She had never previously complained to him about his work performance. She also said that his MS was affecting his work. This caused him to become very angry and he had denied it. She had also said that his driving was bad.
He decided to do something about the comments about his MS because he knew he had it under control. When he had finished his work that day he drafted a letter on the computer to Mr Frewin at home. He had then prepared the letter (C19) and provided it to Mr Frewin, followed by a discussion with Mr Frewin. There was no immediate action taken because Mr Frewin was going on leave. During Mr Frewin's absence the complainant on about 30 July 1993 went to Mr Bennett because he felt Ms Masson was showing animosity towards him. He also raised other incidents. These included Ms Baylie walking out of the photocopying room without answering when Mr McDonald had said hello.
Subsequently, he learned that Mr Bennett had spoken to Mr Swann and asked him to have the MS Society test Mr McDonald to determine his ability to work. He attended a meeting with Mr Swann and Ms Baylie on or about 3-5 August 1993. He learnt there were three things of concern to Mr Bennett: the complainant's ability to work, his irrationality and his driving to work. At the meeting, Ms Baylie raised the matter of his performance not being as good as it had been. This meeting was recorded in a file note made by Mr Swann dated 3 August 1993. As recorded, Mr Swann informed the complainant that he had approached the MS Society in broad terms and sought his agreement to seeking that support. Mr McDonald had agreed to involve the MS Society in order to overcome any problems. This was the first occasion on which he had been told that his output had deteriorated. An appointment had been made by Mr Swann for Mr McDonald to attend an appointment with Dr Lindsay Vowels who was employed by the MS Society. Mr McDonald had had previous contact with Dr Vowels beginning sometime around 1983 or 1984.
In a later file note, Mr Swann recorded that on 5 August 1993 Mr McDonald had come to his office and complained that he had not been told his work output was considered to have reduced until it had been mentioned at the MS meeting. Mr Swann indicated that he would ask Ms Masson to speak to him about it.
Two appointments had been arranged with Dr Vowels, a psychological assessment on 9 August 1993 and a medical examination on 12 August 1993. Mr Swann had passed this on to Mr McDonald and Ms Baylie. On 16 August 1993 a meeting had been held attended by Ms Baylie, Mr Swann, Ms A2, a fellow worker who was concerned with equal opportunity issues, Mr McDonald and Dr Vowels. The substance of the meeting was recorded in a note by Mr Swann dated 16 August 1993. The meeting was informed that Dr Tan from the MS Society had medically examined Mr McDonald and concluded that his physical condition had improved in comparison to his last examination, although fatigue and visual problems remained. Dr Vowels had told the meeting that her own testing had indicated that Mr McDonald had undergone a minor deterioration in memory testing. This was not outside the limits for normal age deterioration. Planning and organisation had been down due to a lack of system and approach but regulation of behaviour rationality had improved compared to four years earlier. His visual scanning was below normal and deteriorated with fatigue and stress. Dr Vowels had concluded that the requirements of Mr McDonald's present situation were not beyond his capabilities. Further assistance in that area might be required. Dr Vowels had said that Mr McDonald's approach appeared to be positive and that he was desirous of overcoming existing problems. There was no evidence of any paranoia. His condition would deteriorate in the future but it was not possible to put any time frame on this "as it could be rapid or extremely slow". According to the file note "it would appear from the above that MS is not a major factor in recent events and that further discussion is required to resolve those issues". That had been Mr Swann's conclusion.
About that time Ms Masson had completed a performance appraisal relative to Mr McDonald receiving a salary increment. In it she had given Mr McDonald a rating of "satisfactory" in the relevant boxes concerning attendance, conduct and efficiency. She had added the comment "your attendance, conduct and efficiency have been excellent in the past. However, you had some difficulty settling back into the section. However, those problems are to be resolved." The appraisal was dated 4 October 1993.
Following the meeting in August 1993 with the MS Society no further meeting had been convened by Mr Frewin or anyone else so that Mr McDonald and Ms Masson might talk through the issues. Things had not improved after August between the two of them. In fact they got worse. According to Mr McDonald things became more difficult for him in that he seemed to have more than his fair share of work and was asked to finish it as soon as possible.
Mr McDonald gave evidence about the relocation of the furniture and work stations at his section. This had occurred on his floor in October 1993. As indicated on a plan, the desk allocated to Mr McDonald required him to move near the windows on the western side of the building. It was the first desk immediately out of where the lifts were. This was in an open plan office. The desks were separated by bookshelves. The bookshelves had been placed between Mr McDonald and the next desk occupied by Ms Natalie Noronha. Mr McDonald had asked to move to another free desk which was next to Ms Noronha. Bookshelves had been put up later between him and Ms Noronha.
When Mr McDonald had become aware of his new position he went into Ms Masson and said it was unsatisfactory for him in his condition because heat exacerbated any problem he had with MS. He had previously been situated in a cool position. His new position was according to him in the warmest part of the building. This is where the sun heated up at the west end of the building in the afternoon. He had told Ms Masson that the western end was the worst position for him. According to Mr McDonald "when I said that the area was too hot for me and would affect my ability to work" she said, "that's why we put you there". The complainant went to see Ms A, the equal opportunity officer and occupational health representative. He had followed it up by writing a memorandum to her (C24).
Regarding the bookshelves, he had come into the office and found Ms Masson and Ms Noronha lifting bookshelves onto the desk that separated Mr McDonald from Ms Noronha. Ms Masson had made a comment that "it's to block him out." She had made this comment to Ms Murnane.
After this, the complainant continued working but by then he had started taking time off. He was finding it extremely difficult to handle the pressure being applied to him. He was in a warmer area of the building so his output wasn't as great as it would have been. In late November 1993 he had a meeting with Ms Masson in her office. Ms Masson had come to his desk and called him over. She had indicated she wanted to discuss his work with him and how she could help him get some of it done. At that stage he had asked for Mr Frewin or Mr Swann to be in attendance but Ms Masson had made it clear that she wasn't going to have either in attendance. He started to walk out but Ms Masson had told him to sit down. She started to ask him about his annual leave. He had said that if he had wanted to take any he would let her know. She had then started to say that she didn't want him in the team and that nobody else wanted him there because she had been receiving complaints. He asked her to produce some of the evidence. When she didn't supply any he had told her he was leaving and if she wanted to talk she should have Mr Frewin or Mr Swann there. As he started walking out the door Ms Masson "continued to rant with a lot more vigour". She was telling him to get back to his desk and to his work.
The complainant was referred to a document prepared by Ms Masson relating to a meeting that occurred on 13 November 1993. This recorded Ms Masson's version of the meeting. In it, Ms Masson indicated that she had wanted to discuss the backlog of work and problems he might have had. According to the complainant she had not discussed the backlog as indicated in the note. Ms Masson had raised his involvement with staff issues with him. According to him, differing from Ms Masson's note, she had not raised with him anything about the actions of Ms A or expressed dissatisfaction about the assistance he provided to her. She had not raised his non-cooperative attitude. In relation to a comment by Ms Masson about staff issues, Mr McDonald said he had commented that he had been treated differently to another worker, Ms Skelton. Ms Masson had started to tell him she had a problem with disability but he had stopped her and had asked for Mr Frewin or Mr Swann to attend. He could not recall whether she had raised difficulties about, or the need to improve, his organisational skills. When he had asked for Mr Frewin to be present she had stated something to the effect that she wouldn't permit that because the matter was between the two of them and that he was to sit down and work through the problems with her. She had mentioned that she had had complaints from the staff. He then had referred to a duty statement which had been issued about two weeks before and said that he would work to it. She had gone on to say that if he left her office without resolving the issues he could leave the section and that there might be a problem as other managers might not want a disruptive staff member.
After this incident he went back to his desk and started working and either the next day or the following day he had taken several days off work. He had applied for WorkCover compensation on about 13 January 1994.
The complainant also gave evidence about an occasion when he had gone into work and found that nothing had been where he had left it. His desk had been neat and he saw labels and notes about where things were up to. He had tried to work for a while but then decided that in the light of everything that had been occurring since July he would have to do something and try and evoke a response from the respondent's management. This had led to his application for WorkCover. He had given as grounds stress and anxiety caused by the breakdown in the relationship with his supervisor and her manager, Ms Baylie. After he had lodged the claim he stayed on leave until he had received advice from WorkCover that the claim had been rejected. An investigator had come out to his house and interviewed him. He had made a statement to loss assessors, D W Bowe & Associates. A report had been prepared by a Dr Fail who had examined him on 11 January 1994. He had also consulted a Dr Holmes and the latter had provided a report to WorkCover. WorkCover had notified his employer that the claim was rejected on 20 January 1994.
Mr McDonald had returned to work on 25 January 1994 and Ms Masson had not been there. Ms Baylie had given him a stack of files to work on. He had felt pressured. He had received a phone call about a matter concerning the death of a member. This was about the last thing he needed and so he went and saw Mr Frewin and told him that he needed to go home. Mr Frewin offered him a voluntary departure package. It was dated 16 February 1994. Mr McDonald responded that he wouldn't accept the voluntary departure package. He tried to apply for leave without pay for an indefinite period but he received a letter from Mr Frewin stating that his application for leave without pay was rejected. He had then applied for disability benefits. This application was dated 4 March 1994. He had not been required to attend for a medical examination and the next thing he heard his application had been approved.
In relation to WorkCover, conciliation had occurred and some payments were made in respect of sick leave and annual leave that he had used up. This was by way of a small concession. Summing up these events Mr McDonald told the Commission "my WorkCover claim was lodged on that basis, to get a resolution." Once the WorkCover was refused he had applied for a disability benefit although it would have been questionable whether he was eligible for a benefit. He had further decided that if the respondent was not going to try and resolve the problem he would take the benefit and run because everything he had tried had not worked. He therefore had written to the respondent on 10 March 1994 resigning from the next day.
Mr McDonald gave evidence in support of his claim for compensation including salary and superannuation calculations. At the time of the hearing he was receiving a single disability support pension at the rate of $351.80 per week. He had moved to Queensland and applied for full-time and part-time employment there. All he had been able to do was a newspaper distribution round for something like 18 months. This had paid about $22.00 per week. Later he had distributed leaflets and obtained $5.00 per week. He had contacted the CES in 1996 and enrolled in Skillshare.
3.2 Evidence of Dr Lindsay Vowels
Dr Vowels, a neuropsychologist employed by the MS Society, told the Commission that she had known Mr McDonald since 1985 and had performed various tests on him. She had prepared a report dealing with the capacity of Mr McDonald to work with the respondent. Counsel for the respondent objected that the report prepared by her should not be accepted by the Commission where it contradicted medical opinions relied on by the respondent, given that Dr Vowels was not medically qualified, and could not be taken to be conclusive of the medical issues before the Commission as to the ability of the complainant to carry out his employment. I ruled that I would take her report into evidence for whatever assistance it might provide, and would determine its value and weight in the light of submissions and cross-examination.
Dr Vowels told the Commission that she had been contacted by Mr Swann on behalf of the respondent. Initially, this had been way of a general inquiry about MS. This was roughly in May 1993. There was a follow up call which revealed that the respondent was concerned about Mr McDonald. Dr Vowels had indicated she could not discuss Mr McDonald without his permission. After his permission had been granted, Dr Vowels had undertaken an overall assessment of his MS and had arranged for him to be examined by a rehabilitation specialist, a Dr Tan. As a result of the assessment she had concluded that he was better than previously tested or stable on each of the issues on which he had been examined. She then contacted the respondent again and had attended a meeting at the Board's office together with Mr McDonald, Mr Swann, an occupational health and safety person and a supervisor at the next level after his immediate supervisor. She had expressed the view that his condition was stable but would need some degree of consideration..
Towards the end of 1993 Mr McDonald had contacted her and told her that things at work were not good. As reported in a letter dated 19 May 1994 (C36) she had seen him four sessions of counselling and stress management. She had liaised with Mr Swann and informed him of her concerns. She had then spoken to Mr McDonald on 23 November 1993 following which she performed a depression screening assessment and spoke to him again on 10 December 1993.
Dr Vowels had performed another neuropsychological assessment on Mr McDonald on 28 February 1997. His memory had deteriorated marginally. In the tests on intermediate memory he had performed between the 90th and 95th percentile of the population. His visual memory had been better than verbal memory. He had not performed so well on a test involving recall of a logical story. She had also tested for flexibility of thinking and concept recognition. His performance here was between the 70th and 80th percentile of the population, certainly above average. He performed above average for new learning. On verbal fluency he was essentially unchanged from 1989. On problem solving there was no evidence of alteration since his last review. He was well above average at about the 75th percentile. Finally, she had tested Mr McDonald for assessment of mood and affect. Compared with past assessments she noted that in 1989 he had been depressed, in 1993 he was also clinically depressed. She had concluded that in 1993 he was a bit better than the time of the later test.
Based on the tests she had done on 28 February 1997 compared with previous tests she had concluded that "all attributes tested are competent to cope with the challenges of a normal workplace" (C37). She had assessed that he had been competent to perform in the sort of job he had had with the respondent. Compared with previous testing he had a less efficient memory which had marginally gone down but his other conditions were remarkably stable. If he had no major MS episodes he could possibly be in the workforce for another 10 years.
In cross-examination she agreed that at the meeting on 16 August 1993 she had advised that Mr McDonald was perfectly capable of doing his job and MS was not a factor in his work performance, though he would have difficulties with heat and the problems that it would cause. Further, in her estimation there was nothing unsafe about his driving in 1993 based on her assessment except that it would not be advisable to drive on extremely hot days. She stated she was not aware when she wrote her report of May 1994 that Mr McDonald had submitted an application for a disability benefit nor that Dr Holmes and Mr Heath had concluded that the prognosis for Mr McDonald based on his MS was poor and progressive. Dr Vowels agreed that at the end of 1993 Mr McDonald was not capable of working in his situation but that was because he was fairly convinced that he couldn't cope with that job for various reasons. Her conclusion in her report of 28 February 1997 that Mr McDonald was perfectly capable of performing any job that he formerly had at the Board assumed that he would be working under less stressful and emotional circumstances. By that she meant there would be no hostility, no undue heat and normal accessibility to such things as parking and toilets.
3.3 Evidence of Ms Kylie Black
Ms Black was until June 1993 a Customer Service Officer with the respondent at the same level as the complainant, namely an Assistant Team Leader. She worked with Mr McDonald in Ms Masson's section. She told the Commission that she had been told in May 1993 to give a particular file to Mr McDonald by Ms Masson who had said: "Give it to Peter. The more work we give him, hopefully he will get stressed out and resign." Ms Black had resigned in June 1993 but a few weeks later in July she had spoken to Ms Masson who had told her that she did not want to drive Peter into work every day - because of his disability he wasn't able to cope with driving into work every day, therefore he would probably have to resign due to disability.
In cross-examination Ms Black denied that she had left the respondent with a fairly negative attitude towards it. She said when she spoke to Ms Masson in July 1993 it was on the telephone.
3.4 Evidence of Ms A
Ms A was employed by the respondent from January 1989 until January 1994. Besides her administrative position with the Board she also was the employee representative on the Occupational Health & Safety Committee and the Equal Opportunity Committee. She had dealings with Mr McDonald when he had sought advice from her about certain matters. The first was in relation to the allocation of a parking space to him in February 1993. This had been settled satisfactorily with Mr Frewin. In early 1993 she had been approached by Ms Masson who had expressed concern about the complainant's medical condition. Ms Masson had asked her to obtain information about MS which she had done. She had approached the MS Society who had sent a package to her. Ms Masson had approached her in a confidential conversation and made reference to Mr McDonald's need to use toilet facilities regularly and to his speech patterns when Mr McDonald answered the telephone. She had also made reference to her perception of his ability to drive. Regarding the frequent use of the toilet she had said it must "either be MS or he must be pregnant."
Ms A had attended the meeting on 16 August 1993 in relation to Mr McDonald's MS. She agreed that Mr Swann's record of the meeting was broadly accurate.
Mr McDonald had approached her in November 1993 about a re-shuffle of the work desks on his floor. He had expressed concern that he had been relocated to the western side of the building where there was a significantly glassed area which had the western sun in the afternoons and he was concerned about possible heat stress. She had received a memorandum in relation to the relocation at that time and she had suggested that Mr McDonald approach Human Resources. She had requested a temperature monitoring in relation to Mr McDonald's placement.
On 22 November 1993 she had a further discussion with Ms Masson. She had a call from a distressed member of the Fund and because the Member Services Manager, Ms Baylie, was absent she had approached Mr McDonald to ascertain at what stage the member's claim was at in order to answer the member's query. This occurred in an open floor situation and as Mr McDonald was proceeding to look at the client record Ms Masson approached and demanded that she stop talking to Mr McDonald and demanded that Mr McDonald go to her office "now". Ms A attempted to point out that Mr McDonald was responding to a question about a member and Ms Masson had very loudly said that she would take the matter to Ms Baylie to which Ms A had replied "yes, indeed, let's". In Ms Baylie's office she had endeavoured to explain why she had approached Mr McDonald and she raised Ms Masson's inappropriate behaviour. Ms Masson had made comments about Mr McDonald's work and had said that it all had to go through her; further, that his memory wasn't good. Ms A had been told not to approach Mr McDonald. The procedure to be followed was that all his work was to go through Ms Masson.
As a result of the meeting, Ms A had discussed the matter with Mr Frewin and had followed it up with a memorandum dated 24 November 1993 (C38).
After the matter of the location of Mr McDonald's desk had been raised, he had been re-allocated to another desk. On a day when he was absent bookshelves had been erected in between the desks in such a way as to form a barricade between team members. Ms A had heard Ms Masson comment to another worker, Ms Skelton: "Now you won't have to look at him".
In cross-examination, Ms A stated that she had generally reported either to Mr Frewin or Mr Swann the concerns she had about Ms Masson's comments about the complainant. In the latter part of 1993 she was aware that there was tension between Ms Masson and Mr McDonald. She denied that in late November 1993 she had been working late with Mr McDonald with a view to laying a "charge" against Ms Masson over the removal of the temperature gauge. Regarding the meeting on 22 November 1993 in Ms Baylie's office she did not accept Ms Masson's version of the events in the note prepared by Ms Masson where it conflicted with her account.
4. EVIDENCE FOR THE RESPONDENT
4.1 Evidence of Mr John Frewin
Mr Frewin had worked with the respondent for seven and a half years. He recalled that about the middle of 1993 he became aware that there may be difficulties between the complainant and Ms Masson. He had some visits from Mr McDonald and from Ms A. Prior to this he had dealt with a problem of car parking by Mr McDonald after an approach from Ms A. He had in fact allocated Mr McDonald his own parking space.
He recalled a discussion he had had with Ms A about the middle of 1993 about the problem between Mr McDonald and Ms Masson. Mr Frewin had advised her that this was a matter that should be resolved between the two and if Mr McDonald was not satisfied he should take it up with the Ms Baylie. Mr McDonald had approached him and discussed at various times the difficulties he was having with Ms Masson. This was around July 1993. He had told Mr McDonald that it was a matter to be resolved between him and his supervisor. He recalled that on one occasion Ms Masson called him and asked if Mr McDonald was in his office. She was concerned he was missing a lot from his workplace, supposedly on enterprise bargaining committee activities. On one occasion Mr McDonald had complained to him that Ms Masson had re-arranged his desk, putting things in his in-tray and generally upsetting his arrangements. He admitted it was not unreasonable for her to want to prioritise work and she had a right to be looking for something on his desk.
Before Mr McDonald left in March 1994 Mr Frewin had observed that there certainly was a deterioration in Mr McDonald's overall situation. He had received from Mr McDonald an application for leave without pay from 21 February 1994 but become aware that Mr McDonald's sick leave was to expire on 19 February 1994. There was no provision for indefinite leave without pay. He had written to Mr McDonald pointing out there were a number of voluntary departure packages which were available and suggested that he might like to consider one. Mr Frewin had had a discussion with him around that time in which Mr McDonald had said he had had great difficulty working for Ms Masson. He denied that at any stage in 1993 Mr McDonald suggested to him that Ms Masson was treating him inappropriately by reference to his illness. Between July 1993 and the end of that year he had not discussed Mr McDonald's illness with anyone other than the General Manager.
In his letter to Mr McDonald in February 1994 he had advised: "If, however, your medical condition is such that you're unable to continue in employment you should complete the enclosed form and return it to this office without delay". After Mr McDonald had decided that he wished to seek a medical disability retirement package, Mr Frewin had discussed his medical condition with him. After a couple of weeks Mr Frewin had decided to follow the matter up as there had been no response. After a telephone conversation with Mr McDonald he had received a letter from him accompanied by an application for medical disability. He understood the application had been successful. At that stage he had a clear impression that Mr McDonald was keen to leave the respondent.
In cross-examination Mr Frewin told the Commission that he was Chairman of the Equal Opportunity Committee of which Ms A and Mr Swann were members. He recalled that when Mr McDonald had raised the matter Ms A had also come to him with concerns about what was happening with Mr McDonald and Ms Masson. He agreed that he had become aware that Ms Masson was criticising Mr McDonald and was referring to his MS but had not approached Ms Masson about whether her criticisms related to MS or not. He had not thought the matter was serious enough to warrant further consideration and had chosen to take no action about it.
Though he had not been at the meeting with Dr Vowels on 19 August 1993 he had had a conversation with Mr Swann following it. Prior to the MS meeting Mr Frewin had had a discussion with Mr Bennett, the General Manager, who had been concerned about whether Mr McDonald might stumble in the street and fall on a roadway because of his MS. That had led to the approach to the MS Society for advice. Although the advice from Dr Vowels indicated that MS was having little effect on Mr McDonald's performance, he saw no cause to investigate the problems between Ms Masson and Mr McDonald further as no formal complaint had been made. He denied that when Ms A had raised with him the difficulties between the two in July 1993 she had claimed Ms Masson was mistreating Mr McDonald because of his disability. As to whether Ms Masson was correct in complaining about Mr McDonald's absences at enterprise bargaining meetings, Mr Frewin did not dispute that Mr McDonald had only been absent at an unauthorised meeting on one occasion. In relation to comments by Ms Masson and Ms Baylie that Mr McDonald had been forgetting things despite the fact that he knew forgetting things was a symptom of MS, he had not followed up those comments because he had no reason to believe that the complainant was losing his memory. He was a very sharp person. Mr Frewin acknowledged that in August 1993 he had received a document authorising a salary increment for Mr McDonald in which Ms Masson as his immediate manager had ticked the appropriate boxes.
He was aware that in early 1994 Mr McDonald had made a WorkCover claim based on stress. Initially it had been disallowed but on a review after conciliation Mr McDonald had been paid as a compromise an amount equivalent to a period of sick leave to which he had not been entitled. He was unaware, however, that he (Mr Frewin) had been criticised by Ms Masson over this matter.
When asked by the Commission whether he had not found it odd there had been an investigation into Mr McDonald's MS condition around July 1993 which suggested that MS had no serious effect on the way he performed his duties and yet early in 1994 the complainant had been assessed as unfit on the basis of medical evidence relating to his MS condition and deterioration, Mr Frewin said he had no reason to consider that the condition had advanced to that stage at a rate faster than normal.
4.2 Evidence of Mr Ernest Bennett
Mr Bennett, the General Manager of the respondent, told the Commission that in the middle of 1993 he had become aware of a personnel problem that had been smouldering and needed to be addressed. The problem was that Mr McDonald's work performance was considered to be deteriorating. The respondent had a set of procedures where if someone was not performing satisfactorily they would go through a series of counsellings and appraisals. He had been advised in 1993 that there were difficulties in the relationship between Mr McDonald and Ms Masson. He was aware that Mr McDonald had an MS condition.
He had talked to the Personnel section to see if there was a way in which a benchmark measurement could be established from which to measure whether Mr McDonald was undergoing a future deterioration because of his condition. Contact was made with the MS Society to determine whether there was any indication of the progress of the disease. By the middle or latter part of 1993 he was receiving regular reports that Mr McDonald's work performance was deteriorating. He had himself observed an incident where Mr McDonald was walking along the street near the offices. Something appeared to be wrong with his balance. He appeared to be wandering off to the right at an angle of about 45° and was weaving down the footpath. Towards the end of 1993 Mr Bennett had a meeting with his Corporate Affairs section. He was concerned about Mr McDonald still driving a motor car.
As to the general situation he saw the matter of whether Mr McDonald would continue to remain an employee as a matter to be addressed. The normal process in such cases took three to six months to achieve an outcome. Verbal warnings would be issued about perceived shortcomings followed by formal written warnings. That process however had not occurred in the case of Mr McDonald. Mr Bennett told the Commission that "Peter preempted all this by just removing himself from the workplace and that then started another series of events". Mr McDonald had stayed away from work and taken up his available leave. When this was exhausted discussions were started about his future including putting proposals to him about whether he would think about discontinuing working for the organisation. He himself had not been involved directly in the negotiations. He could recall Mr McDonald speaking with him directly but he could not recall when. The conversation had been about what was going on with him inside the organisation. When Mr McDonald had eventually applied for benefits under the superannuation scheme Mr Bennett, who was the final decision maker in such matters, had decided to grant the disability pension. He had done so because the application met the conditions of entitlement under the superannuation guidelines and rules of the relevant fund.
He was also aware of an incident that Mr McDonald had raised about the physical relocation inside the building. Mr Bennett had been advised that the position had been corrected.
In cross-examination Mr Bennett was asked about the rules relating to eligibility for disability benefit and in particular the relevant definition of "disability". He was also referred to the opinions of the two doctors which were relied on to grant Mr McDonald his pension. Mr Bennett agreed that he had relied on those opinions in coming to his decision. Mr Bennett expressed the view that the complainant had abandoned his position at work by withdrawing his labour from the organisation. He conceded Mr McDonald had taken up leave to which he was statutory entitled and had put in an application for a pension before the last of such had expired. Nevertheless, he adhered to the view that Mr McDonald had "absented himself" from the organisation. Mr Bennett insisted that he had granted the pension application on the basis of the governing rules of the superannuation fund. This was on the basis of the complainant's disability which was MS. Concerning the decline in Mr McDonald's performance, Mr Bennett said one reason had been his inability to handle the level of work in which he was engaged and another may have been the MS or the progress of that disease.
In relation to Mr McDonald's WorkCover claim, he had very little to do with it. He could not immediately recall receiving any complaint from Ms Masson about the outcome of conciliation. He could not recall specifically having received a letter from her nor having discussed it with her. The letter dated 11 May 1994 included a statement "I brought your attention last November to my concern about John Frewin's mateship with Mr McDonald. Mr McDonald may be encouraged to proceed and carry out litigation threats".
4.3 Evidence of Ms Janet Masson
Ms Masson gave evidence that she was a Team Leader with the respondent in the pension and insurance section and had worked with the Board for eight years. She had worked with Mr McDonald when he had first become an employee at the Board. He had started at the level of an ADM2 but shortly after became an ADM3, the same level as she has been, in the same section. At that stage she had got on very well with Mr McDonald. He had left the section when he had been seconded onto a team to help develop a new computer system some time in 1992. In January 1993 there had been a restructure of positions with new positions and new teams being advertised and implemented. She had been appointed to her then position. She was aware that Mr McDonald had applied for another Team Leader's position but it had gone to Ms Murnane. The complainant had been placed in that particular team. She understood that he had "appealed" against the decision and on one occasion had expressed to her that he was not happy with Ms Murnane working part-time in a full-time position. She had heard hearsay from a staff member that Mr McDonald "was giving Helen hell". This was about January/February of 1993.
The complainant had requested to return to Ms Masson's section and that had taken place. Because of what she had understood had been happening between Mr McDonald and Ms Murnane she had a feeling of concern that the same situation could arise between Mr McDonald and her.
She had commenced driving to work with the complainant about February 1992 when she was living in Boronia, not far from Mr McDonald. That had continued for a short time in 1993 until she had moved to Fern Tree Gully. Because of the extra distance and the fact that as a Team Leader her times of work were longer, she had decided to discontinue the arrangement. She said she had discussed with Mr McDonald probably before Christmas 1992 that their travel arrangements would cease. One of her children had had an accident in January 1993 that required her to alter her travel arrangements because she needed to be home early on some occasions. After this the driving arrangement "was on and off" until May 1993.
In May 1993 Mr McDonald commenced working in her section but the travel arrangement had come to a stop at the end of that month. This was because when travelling home one night, with Mr McDonald driving, there had been three near misses. He also had been complaining and abusing "management" and was not concentrating on driving. Ms Masson had been so upset that her daughter had rung the respondent the next morning and advised her supervisor that she couldn't go to work. She took three days off. After this she did not travel with Mr McDonald again. This was because she was frightened of having an accident and also because he had been talking about charges or litigation against the organisation.
Mr McDonald had asked her to continue travelling with him but she had told him she was frightened to do so and she was scared that he or his wife would sue her if there was an accident. This conversation occurred about two weeks after the arrangement had stopped. Although she had thought he had accepted it, about four weeks after that, at the beginning of July, she had found Mr McDonald looking at the block next door to her new home. When Ms Masson asked why they were thinking of living there, Mr McDonald's wife had said it was because Ms Masson could continue to drive him to work. Ms Masson had been very upset about this.
Ms Masson told the Commission that up until about January or February 1993 she and Mr McDonald had always been good friends and got on well together. After he had moved back into her section on 17 May 1993 his attitude towards her and his work changed. He had not met his work deadlines and was not happy about following instructions she gave him. This involved questioning things and challenging decisions she had made in her role as Team Leader. At this time, because of changes in the Work Care legislation, there was an increase in the number of claims. She felt that Mr McDonald's level of work performance was not as productive as it could have been. However, after she had stopped travelling with him, she believed that any issues between them had been resolved.
She told the Commission how from time to time she had made notes recording things that were happening in the organisation. These included a memorandum from Ms Baylie to Mr Frewin on which she had added some handwriting (R10 - 1). These notes referred to Mr McDonald having "big problems". This had been made in respect to his complaints about Ms Murnane. Ms Masson had felt that Mr McDonald had a problem with woman managers. She recorded that a fellow worker, Audrey, was having great difficulty with the way Mr McDonald managed assessments. According to her recollection, Audrey had come to her about this in May or June 1993. She had also recorded that Mr Bennett had called a meeting. She found it embarrassing that her team members had been involved. She had written this note because of what she saw as bad behaviour on the part of a worker, Ms Black, being rude to a previous supervisor.
Further, she had written "Peter McDonald has to go. He's getting out of control. Another team, other work." She felt that he should be moved to another team. This was because at the time it was an all women section, apart from Mr McDonald, and she had thought perhaps he would be best in a section with a male team. He had never had a problem when his team leader had been Mr McKelvie (R10-2).
She had made a further note dated 6 July 1993. This had followed her asking all her staff to give a list of outstanding work on their desk to Ms Baylie. Mr McDonald's advice (on which she had written her note) gave no indication about outstanding work. She had added: "he is peeved with Helen's appointment and is still going on about it" (R10-3). She stated that by July 1993 there was a problem not only with him but with other staff in the section.
She had received a further memorandum headed "Report on event which occurred on 21/7/1993". In it, Mr McDonald had recorded:
"Leanne Skelton had discussed with me a matter which had been placed in her hands by Janet Masson just before lunch today. I offered some confidential advice to Leanne ... I was seated at my desk a few minutes later when I was summoned into Janet's office. Leanne was seated in the office and Janet asked whether I had a problem with the Board and with her."
By way of explanation Ms Masson said that she could recall that Ms Skelton had a problem which she thought had something to do with advice that Mr McDonald had given her. She had called Mr McDonald in and asked him if he had a problem. She remembered that he had told her that his problem was with her (Ms Masson). She could remember that he was unhappy about Ms Skelton being reclassified to an ADM3. He felt Ms Masson had not supported him. She had not wanted to tell Mr McDonald why Ms Skelton had been appointed to the higher position. This was because there was an increased workload and a lot of additional work and another ADM3 position was needed. There was another reason for splitting the work. When Mr McDonald had been in charge of the section on a day when Ms Masson had been away, Mr McDonald had given Ms Noronha instructions to make a lump sum payment when there was no letter from the pensioner requesting the same. Later, because there was no letter received from the pensioner, Ms Noronha had reversed things and stopped the payment from going out. When Ms Masson had returned to work Mr McDonald had written her a memorandum explaining what had happened. Ms Masson had sorted this out with the pensioner.
In Mr McDonald's memorandum he also recorded "I advised Janet that I was personally offended by her accusations. I told her also that her comments about Kerry were disgusting as she hardly knows my wife."
Ms Masson had received a memorandum from Mr McDonald dated 16 July 1993 (R10-4). Mr McDonald had come and advised her that Ms Noronha was insubordinate and that he had reported her to Personnel. Ms Masson had written a note which recorded the following:
"Peter advised that Natalie is insubordinate. He is reporting it to personnel. I called Natalie in and questioned her on Peter's supervision. Natalie advised that she was having nothing more to do with Peter as he had lost it."
This, said Ms Masson, reflected what she had been told by Ms Noronha. Ms Noronha had felt that Mr McDonald was giving her incorrect supervision and she did not want to follow his directions any more.
She had also written a note on a memorandum from Mr Bennett to Ms Noronha dated 16 August 1993 (R10-6) as follows:
"Sample of Peter's communication with staff in his section. Peter left in charge of section for one day, what a disaster."
This referred to an incident when Ms Masson had returned to the office after a day's leave in which three staff had approached her. They were upset. In the case of Ms Noronha this was because the complainant had reported her to Personnel for making a personal phone call. He had also upset a worker named Audrey by telling her to let Personnel know that she was turning 65 so that Audrey's job would finish at that age. Ms Masson had raised these matters with Mr Swann in Personnel but had felt dissatisfied with the lack of reaction from that quarter. In fact, Mr Swann had suggested to Ms Masson that she was unsuitable as a manager because of the problems in her section. She had discussed the matter with Mr McDonald and he had confirmed that he had reported the three staff members.
Asked about a discussion with Ms Black in May 1993 she said she had no recollection about a discussion concerning reallocating work to Mr McDonald. She denied that she had suggested that Mr McDonald be given more work in the hope that he might become stressed and resign. She also said she had not spoken to Ms Black after the latter had left her employment with the respondent. Ms Masson also denied having any conversation with Ms Black about the new car her husband had bought her. She had never suggested that she hoped that Mr McDonald might resign because he might face difficulties driving.
She was also becoming concerned about the fact that Mr McDonald was effectively communicating direct with Ms Baylie. This was indicated by a note she had added to a memorandum from Mr McDonald to Ms Masson dated 14 October 1993. At this stage Ms Masson was concerned that Mr McDonald was spending a lot of time with Ms A, another staff member, and she was sure that Mr McDonald was planning something in the nature of making charges against management. Her source was staff rumours.
From July 1993 Mr McDonald spent less and less time in the section. He told Ms Masson that he was attending enterprise bargaining meetings. He was not getting through his work. She had not reallocated any work specifically to Mr McDonald but there had been a general increase at that time.
About that time she was considering what recommendation she should make respecting the complainant in connection with a salary increment due in August 1993. She had approached Ms Baylie about this and had been told that she should make a recommendation based on Mr McDonald's past satisfactory work. She had conducted an interview with Mr McDonald at which Mr Swann was present. She went through a number of issues including Mr McDonald's relationship with staff and the problems that he was having integrating back into the section since his return. She had decided to approve an increment based on past performance which had been excellent. She told him he would have to work to resolve the current problem. She had asked Mr McDonald if he wanted to respond and he indicated quite clearly that he had no intention of cooperating with her and would not assist her as the Assistant Team Leader. This had led her to write notes on a memorandum from Mr Frewin to her dated 4 August 1993: "I feel a failure as a manager". She had added: "discussed with Laura how to handle increment raise. His work poor. Advised to give satisfactory for past performance. Mentioned the difficulty he is having in returning to his section".
About that time Mr McDonald had approached her about problems with his workload. She had discussed it with him and told him she thought he wasted too much time on other management issues and on staff issues. His productivity was far less than some other of the staff in the section. By way of response he had wanted to go to Human Resources and did not want to continue the conversation without having Mr Frewin or Mr Swann there with him. Ms Masson had insisted that her discussion was in relation to work matters and that they would continue the conversation without having Human Resources there.
She explained that she was concerned that Mr McDonald in his capacity as a staff representative was going to meetings about enterprise bargaining which were not official. This was because they were not minuted. Asked about her dealings with Ms A, she denied that she had ever made comments to her about the frequency or otherwise with which Mr McDonald had to avail himself of toilet facilities, nor made any comment about his speech patterns or capacity to answer the phone. Ms Masson in fact had not been aware in August 1993 that arrangements had been made for Mr McDonald to have an examination by the MS Society. She had only subsequently become aware of that.
She had also recorded her concerns about Mr McDonald on a memorandum dated 19 October 1993 (R10-9). She had there written: "These memos are a great source of knowing what Peter is up to, read the queries and get his next target of management complaint". She saw Mr McDonald as engaging in a process of sending memorandums or email messages which he would then work up to an incident of some type. She thought in the particular case that Mr McDonald was turning his attention from her onto another member of management.
Turning to the relocation of the office in October/November 1993, Ms Masson said that she had no part in the final decision about relocation, though she had had some prior partial input. On relocation day she was the only team member on the floor. A Mr Peter Groenevelt was in charge of shifting the staff in accordance with a floor map on which all the names of the staff were written. The removalist did the physical moving. The staff member had only to pack up. In the case of the complainant he did not pack his stuff up. All his files were on his desk. For that reason he was left to last. When it came to his move Mr McDonald had asked to move to the next desk on the map because he wasn't happy with the desk that had been allocated to him. Ms Masson had asked Mr Groenevelt if there was any problem with changing the telephones over. He had said that there wasn't and so Ms Masson had told Mr McDonald that she couldn't see a problem with changing the desks. She could not recall having discussed with Mr McDonald where he would be placed at any stage prior to relocation day. She had made some notes about the matter in October or November 1993. They recorded how she felt at the time (R10-11).
Referred to the floor plan (C23) she indicated that Mr McDonald's desk had originally been the one marked "412" and he had moved to the one marked "space" next to it. She had understood that Mr McDonald had been allocated to the first desk because he needed direct access to his filing cabinets which would be next to him against the wall. Ms Masson had also been told that Mr McDonald needed cool air around him, direct access to the toilet and the kitchen, and no hot lights above him. She could not remember, however, that Mr McDonald had mentioned the matter of heat and its effect upon him on the day of the move. She agreed, however, that she had said words to the effect: "That's why we put you there". This was because he had come to her one day and advised her he wanted to move back down to the other end of the office to be near the doorway. She had told him there was very good reasons why he had been put where he had. She hadn't given him the reasons but she had gone and spoken to Ms Baylie and been told that the reason he had been placed where he was originally was because of access to cool air and to filing cabinets. She denied that the area where he was originally placed was any hotter than elsewhere on that floor. She said Mr McDonald had never directly reported to her that he was hot at all. In her written notes (R10-12) of 2 November 1993 she had recorded: "Note: Laura and I discussed this at length and agreed everything possible had been done for Peter". This referred to the conversation she had had with Ms Baylie. She had made another note after 12 November 1993 (date uncertain) arising from an incident where a staff member had come to her in the morning expressing concerns that Mr McDonald and Ms A had been in the office until 8.00pm the night before and Mr McDonald had been typing something up. Ms Masson suspected that this might be in relation to making a charge (by which she understood some litigation or claim) against management (R10-13). Mr McDonald had been speaking in terms of "managers in this operation have got a lot to answer for. One day their heads will roll".
Ms Masson also explained her methods of keeping tabs on people's work. One of these involved the use of trays and giving prompts and messages. She agreed that she had re-arranged the material on Mr McDonald's desk on occasions when he was absent. In November 1993 Mr McDonald had been involved in staff and management issues and his workload was piling up. Ms Masson would request him to bring in certain files and they could not be found.
She denied that she had treated Mr McDonald differently from anyone else in relation to the allocation of work.
By November 1993 Mr McDonald was still uncooperative and was absent more often. Mr McDonald had tendered a medical certificate dated 26 November 1993. Ms Masson had a meeting with Mr McDonald and Ms A in November 1993. The workload had been building up. There were problems with staff complaining about Ms A being in the section frequently. Ms Masson had decided that Ms A shouldn't interrupt Mr McDonald's work. The next time Ms A came into the section with a phone message for Mr McDonald, Ms Masson had said that she would give him the phone message. Ms A had refused. Ms Masson had said in future all phone messages should go through the Team Leader and Ms A had challenged her authority. Ms A had wanted to continue the discussion in Ms Baylie's office so they went there. Ms Masson had reiterated that Ms A had to follow the correct procedures and not interrupt Mr McDonald. Ms Masson took the telephone message from Ms A and called the superannuation member concerned. She had found that the call had nothing to do with her section. This confirmed in her mind that Ms A was making excuses just to talk to the complainant, disrupting the section.
Ms Masson had also written notes relating to the "situation from last week, first week November 1993 to December 1993". Some of this was blacked out (R10-16). These notes covered the particular incident about which Ms Masson was speaking.
She further stated that Mr McDonald and she had had a conversation at the end of November 1993. This was recorded in a memorandum written by her dated 30 November 1993. This was regarding a discussion she had had with Ms Baylie which concerned issues that had arisen in respect of Mr McDonald. He had wanted to leave the section. He wanted to involve Human Resources but Ms Masson had said "no". Mr McDonald had said in the course of a meeting with Ms Masson that he intended to work within his new duty statement and he wasn't going to do anything else. She had been unaware of any new duty statement and Mr McDonald had showed it to her. The new duty statement was in fact one that had been advertised at the time of restructuring. He had indicated he was only prepared to work in relation to some duties which had been highlighted in green (R11). It had occurred to Ms Masson when she compared it with Mr McDonald's former duty statement that the problems in the section were because Mr McDonald had not accepted changes made in the organisation following the restructure.
Referring to particular incidents, Ms Masson said that she had moved a victory ornament relating to the Collingwood Football Club on Mr McDonald's desk but this was after he had resigned when she cleaned the office up. She denied jumping on it, however. She also denied that she had any part to play in the erection of bookshelves on a desk next to Mr McDonald. She had told Ms Noronha who had the desk next to Mr McDonald that she could arrange her desk whatever way she wished and Ms Noronha had put her bookshelf on the side of her desk relative to Mr McDonald. She had not said to anyone concerning Mr McDonald words to the effect of: "You won't have to look at him".
Concerning the disability benefit application made by Mr McDonald in 1994 she said that she was aware of it. When it was submitted she gave it to the staff to process. She would normally want to process it herself. She would look at claims to see whether they were legitimate and completed correctly. On the second page of the application there were two names of medical practitioners. They were Dr Holmes and Dr Williams. The system was that one medical practitioner was the respondent's doctor and the other the applicant's doctor. As far as she was concerned, Mr McDonald's application was dealt with in the usual way. In this case she had sent a letter dated 11 May 1994 to Mr Bennett (R10-18). It reflected her thoughts on the matter at the time. She was emphatic that at no time when she was Mr McDonald's supervisor had she detrimentally commented on his MS. She denied ever taking any action that she thought would harm him because of his condition of MS.
In cross-examination Ms Masson told the Commission that she was unaware at the time Mr McDonald made his WorkCover claim that it was based on stress arising from his work relationship with her. When she wrote to Mr Bennett in May 1994 about it she expressed concern that she was unaware of the WorkCover conciliation meeting despite the serious nature of the claim against her as being named as the course of the alleged injury. In her statement to WorkCover she had sought to focus on the work issues but had not mentioned matters she had raised in evidence about his backlog of work and his questioning of her authority, starting in May 1993 and escalating from July 1993. Ms Masson referred to her statement of interview by D W Bowe & Associates Pty Ltd that:
"Our office interviewed Ms Janet Masson and she felt there was no deterioration of relationship with the claimant and she was unaware of this deterioration until November."
She said she was referring in it to her work relationship with Mr McDonald and though he was uncooperative she regarded that as normal.
When asked about the reason she gave to Mr McDonald for why she had ceased to continue with the driving relationship, namely that she was concerned she might be sued in the event of an accident, she said she was very upset at the time because he was abusive and she was worried about being involved in a car accident because of his unsafe driving. She also discontinued the car travel because she found it inconvenient to adjust her times.
Ms Masson agreed that she had not formally raised the complainant's work performance with him until late July or early August 1993.
Asked about the following statements:
"Peter's spending time with Kylie. Goes downstairs with her. Big influence on her thinking. Kylie resigned. He has taken control of her thinking."
"Liz advised that she had noticed a big difference in Peter since she returned from maternity leave; says he has changed, not the happy person he used to be; says his MS is worse; says he denies it; does not accept reality."
"Kylie bites the dust. Once again Peter's influence has ruined another female's career. He comes out of this clear as the light of day."
she said that the comments reflected what she thought was happening at the time. She believed that the complainant had partly been responsible for an incident where Ms Black had written derogatory remarks about another employee. She thought that Mr McDonald must have had some part in writing the letter given her knowledge of Ms Black's letter writing skills.
Ms Masson was questioned about her statement: "Once again Peter's influence has ruined another female's career". She had felt at the time that he had difficulty with working for a female. She denied that her perception was not borne out by the fact that Mr McDonald may have worked satisfactorily previously for another female supervisor, Ms McFarland, and that he had worked satisfactorily with her in the past. She believed at the time that he would be better with a male supervisor and she denied that she had embarked on a strategy to have him removed from her team. This was what she had meant when she wrote: "Peter McDonald has to go". She denied that it was her intention to have him sacked or forced to resign.
Given that after those words she had written "another team, other work" with a different coloured pen, she said she could have added these words to the document later. She could not remember when she had written the latter comment. She accepted that her statement "Peter has to go" could have been written a short time (one or two weeks) after he joined her section in May 1993.
She had formed the impression that the complainant was being unreasonable to Ms Murnane. This was based on her observation, gossip she had heard about Ms Murnane leaving the office in tears, and the fact that Mr McDonald had told her that he had been unhappy about the decision relating to Ms Murnane. She had thought he had to go because of his attitude and behaviour which she considered was affecting his work performance.
When referred to exhibit R10-1, her note dated 17 May 1993, and her comments that "I have agreed he returns" and "hope I don't regret this, there is no reason why he will not turn on me" and "Helen is a gentle, kind person. Peter would eat her. He is better on my team with me" and "he has got big problems", she said that she felt that the claimant had been quite aggressive in relation to the matter of his appeal concerning Ms Murnane's promotion. She felt he had a problem with the restructure and with women generally.
She agreed that when Ms Noronha had indicated that she was not prepared to be supervised by Mr McDonald she had not directed Ms Noronha to work with him. She had decided that Mr McDonald had a problem with his relationship with other women. She had therefore taken no action against Ms Noronha when she indicated that she would not accept Mr McDonald's supervision.
In relation to the comment "he had a problem with other female members including Audrey", Ms Masson was concerned that the complainant was frightening Audrey about approaching the age 65. Ms Masson conceded that Audrey must have remained friendly towards Mr McDonald in light of Audrey's comment in a Christmas card she sent him at Christmas 1995 "thank you for being the best boss I ever had".
In relation to a memorandum from Mr McDonald to her dated 14 October 1993 (R-10-8) dealing with disability benefits, she said she was not concerned with the content of the memorandum. Rather she felt it was his attitude towards her. She felt at the time that he was reporting direct to Ms Baylie or going to Mr Frewin and going into other offices and meeting people. His workload was building up and he wouldn't communicate with her on a day-to-day basis. He was spending a lot of time with Ms A. She felt it was not necessary for him to have copied the memorandum to Ms Baylie.
She had begun to think that he was planning some litigation or charges against the organisation and its management. She thought he was starting to target people in management. She said she knew he was unjustifiably doing so.
She did not know about the meetings with the MS Society. Ms Baylie had not reported back to her the result of those meetings. She had been advised by Ms Baylie that certain provisions had to be made for Mr McDonald such as where to locate his desk. It was at that point that she was advised of the information received from the MS Society. She did not know the date. She had been advised that there was no reason why he couldn't perform his duties in the same manner as he had always done.
Regarding Mr McDonald's untidy desk, she said at times as Team Leader she would go over to his desk and would take files for action if he was not there. She denied that she had labelled his trays. Rather, she had left work instructions on his desk as she did with other staff.
In relation to the move in November 1993, she said the bookshelves had been put by the relocation people on the desk between Mr McDonald and Ms Noronha's workstation. Ms Noronha had wanted them on her desk and so had Ms Skelton. Both Ms Noronha and Ms Skelton had problems with Mr McDonald. Ms Masson conceded that they could therefore have chosen to have the bookshelves placed to obscure their view of Mr McDonald. She denied, however, that she had supervised the location of the bookshelves. She had had a conversation with Ms Noronha who wanted to move desks because she didn't want to sit next to Mr McDonald. She denied, however, that she had said to Ms Noronha "you can't move but put the bookshelves up so that you don't have to look at him". She had said at a meeting to all the staff together that they could not move and they were to remain where the desks were but they could arrange their bookshelves wherever they chose.
Referred to her comments written on the back of a memorandum from Mr Spander to her (R10-11) "Natalie accepted this and put the bookshelves around to block out Peter" she denied that Ms Noronha had done it at her suggestion. She further denied that she had said "you will no longer have to look at him".
She agreed that the placement of the desks placed the complainant close to an external window. She did not see that as a problem even though it received the afternoon sun at certain times in the year late in the afternoon. She recalled Mr McDonald expressing a concern to her that it would be hotter near the windows. This could have been the day of the move. She recalled that Mr McDonald had come to her and said that he was unhappy with being put by the window. He had asked her to move and she had said that it was okay. She did not think he had asked to move because the position was hot. He had asked if he could move to the next desk but that would have caused difficulties with telephones.
Referred to her notes written on the day of the move and the statement:
"He came to my office with Peter Groenevelt and asked if he could move to the next desk because it would be too hot next to the window."
she corrected herself and accepted that he had mentioned heat. She denied that she had then said in the presence of Mr Groenevelt "well, that's why we put you there". She did say that "there are good reasons for putting you there". She had not given any explanation of why she had said that. She denied that her latter statement was an invention to cover the fact that she had said "that's why we put you there".
She was referred to her statement in her notes on relocation day (R10-13) "when the removalist left the office after completing the relocation, he came to me and advised that Peter McDonald and [Ms A] were going to charge me". She denied that she had fabricated the conversation and insisted that it did occur. She insisted that the removalist had told her that "they" were going to charge her for removing a temperature gauge from the new desk.
She had been told by a staff member, Nick (which she had recorded as "Nick came to see me") that Mr McDonald and Ms A were composing a letter threatening to charge her with removing the temperature gauge from his desk. When asked whether she thought Mr McDonald was using the temperature gauge for suspicious reasons to set her up she replied "no, I had no problem with him having whatever - on the desk". But agreed that she had written a footnote to the following effect:
"I believe he is documenting the daily temperature in the office. There is an unusually large temperature measuring device, possibly from the MS Society. My guess is he's documenting all this in liaison with his female from the MS Society and [Ms A]."
It was put to her that by the date of the memorandum, 17 November 1993, she thought Mr McDonald was setting her up and that because of the problems she was having with him he ought to leave the section. She replied "at that time I did start to take the rumours and what staff had told me seriously and what I had heard Peter say, seriously." She denied that she had, since May 1993, sought to make life difficult for him so that he would leave the employ of the respondent and that she had used her knowledge that Mr McDonald suffered from MS to that end.
Asked about Ms A's visits to Mr McDonald, Ms Masson conceded that she was entitled to do so in her capacity as an equal opportunity officer, but her written comment that "this has got to stop" was a reference to Ms A constantly distracting Mr McDonald from doing his work. She denied that her ordering Ms A from the section was part of a calculated campaign to get Mr McDonald to leave his employment. She denied that she had ordered Ms A to do so: rather she had requested her to follow correct procedures. She agreed that this was a request for Ms A to leave the section. When Ms A had gone to speak to Ms Baylie about the matter, Ms Masson had followed her into Ms Baylie's office. She had asked Ms A to follow the correct procedures concerning telephone messages that she received. She agreed that in the course of the conversation that followed she may have said "Peter forgets things". She had made that comment because she was aware that because of his MS, the complainant's memory was occasionally affected.
She agreed that when a call came in for him she had taken the phone number and, although it was a confidential call, had rung back and found out that it was the MS Society. As a result she had come to believe at the time that the gauge had been put on Mr McDonald's desk by someone from the Society or on the recommendation of someone from the Society and that it would be used to harm her (Ms Masson) by making her the subject of a charge. She had written a note about it: "it's the same gauge that magically appeared the day he moved and Christine did not know what it was. It looks like a large black box - a time bomb. I have not been told what it is for." She was concerned that the temperature was what was distracting Mr McDonald from his work because he was constantly focussed on it.
She was referred to the incident report concerning the events on 30 November 1993 (C25). When Ms Masson had sought to question Mr McDonald he had said "I'm not going to talk to you about personnel matters unless John Frewin is down here". It was in relation to his statement to her that he would only do the duties that were on his original duty statement.
Questioned about whether she had had a conversation with Ms Black about a new car that Ms Masson's husband had bought for her in July 1993, Ms Masson denied that she had spoken to Ms Black after she had left employment with the respondent. In particular, she denied that she had said in the course of such a conversation: "I can't handle what Mr McDonald is doing at work any longer. Maybe he will resign due to his disability because he can't drive himself to work every day".
She also insisted that, in the course of a meeting between Mr Swann, herself and Mr McDonald, Mr McDonald had categorically stated that he was not going to cooperate with her. She agreed that when she had made the comment "I feel a failure as a manager" in relation to the incident she was in an emotional state but denied that it would have caused her recollection to be inaccurate. She had hoped that the discussion with Mr Swann would have given her the opportunity to resolve the problems existing within her section. She had been disappointed with Mr McDonald's statement and felt that nothing had been achieved. That is why she wrote the comment.
She further denied that she had had a conversation with Ms A in which she had commented that Mr McDonald's voice on the phone was slurred and sounded drunk, nor had she had ever commented on the frequency of Mr McDonald visiting the toilet, particularly that she had said there could only be two reasons why he would use to the toilet so much - either his MS or his pregnancy.
Asked in re-examination whether Ms A had ever come to her concerning equal opportunity problems concerning Mr McDonald, Ms Masson said no. Concerning her reason for ringing back on the MS number she said that she had been taking calls relating to a number of disability claims and that they may have been managed inappropriately. She thought the call might have come from a member who was refusing to speak to anyone else but Mr McDonald and she had called back in the course of her duty.
4.4 Evidence of Mr Robert Swann
Mr Swann was a Human Resources Administrator who had worked with the respondent for seven years. He had been the recruitment officer at the time of the complainant's appointment, which he had recommended (R12). He had been alerted by Mr McDonald to the latter's condition of MS. He had contacted the Victorian Equal Opportunity administration and been advised there was nothing to preclude appointing anyone with a MS condition. He had considered Mr McDonald an excellent applicant for the position.
He recalled that during 1993 Mr McDonald had spoken to him about Ms Masson. He had tried to calm Mr McDonald down and passed on information about their differences to Mr McDonald's superiors so that there might be some form of mediation. He had been approached by Ms Baylie who had been worried that there was some deterioration apparently in Mr McDonald's work performance. He had been asked by the General Manager to make some enquiries of the MS Society and had been in contact with Dr Vowels after he had approached the MS Society with a general inquiry. Dr Vowels had suggested that there be a conference involving the complainant and others. Mr Swann had spoken to Mr McDonald about this. Mr McDonald had indicated he was not very happy but had agreed for the matter to proceed. He had prepared a file note dated 16 August 1993 (C21) which he said was an accurate record of the events there described.
Later that year Mr McDonald had come to him about a problem involving the heat affecting him when his section had moved to the west wing. He had referred the matter to Ms Baylie and asked her to investigate the problem. Shortly after he heard that there was some ongoing conflict about the matter but he thought it was best left to be resolved between immediate management and the complainant.
In cross-examination he agreed that it was Ms Baylie who had raised the matter of Mr McDonald's "irrational behaviour" in the middle of 1993. Prior to 5 August 1993 he had not known of any official complaints against Mr McDonald. He had formed the view that Mr McDonald's behaviour might have something to do with a deterioration in his condition. That had been his whole purpose in making contact with the MS Society and calling for a meeting with Dr Vowels. He had recorded in his memorandum of the meeting that "MS is not a major factor in recent events". He had made no further investigation as to why the problem of Mr McDonald's irrational behaviour existed. He vaguely recalled Mr McDonald mentioning some problems he had with Ms Masson, mainly about the driving to work issue.
Mr Swann told the Commission that he was management's representative on the Equal Opportunity Committee. When approached by Mr McDonald about the heat problem when relocating in the western wing he had an employee take a thermometer down to Mr McDonald's desk to measure the temperature. The temperature had been no warmer at Mr McDonald's desk than at any other part of the floor.
4.5 Evidence of Ms Laura Baylie
Ms Baylie, Manager, Member Services, gave evidence that she had been with the respondent for about 15 years. She had known Mr McDonald from the time he started work with the Board. This had been over a 2-3 year period. She had had 12 months' leave and returned to the Board on 17 January 1993. Some Team Leader positions had been advertised. Mr McDonald had applied for one of them but was unsuccessful. The successful applicant was Ms Murnane. Mr McDonald had been unhappy that he had not got the job and had come to her saying that he was going to lodge an appeal. She had informed him that there was no appeal process but that he could lodge a complaint with the Human Resource department. Shortly after that occasion Mr McDonald had come to her complaining that he was having difficulties in the computer data integrity section reading reports. Shortly after this he was brought back to Ms Masson's team. There was a position vacant there and he had liked the work which he had performed prior to being moved to the computer conversion team. Mr McDonald's work performance had always been very good.
After his return to this section matters had started to deteriorate. There had apparently been a personal falling out between Mr McDonald and Ms Masson when Ms Masson's family had moved residence. Ms Masson had reported to her that members within the team were complaining to her that they were actually doing Mr McDonald's work. At the same time complaints were starting to come in from disability applicants. As a consequence she had told Ms Masson to have a chat with Mr McDonald and see whether anything was wrong with his workload.
Ms Baylie had become involved in the assessment by Dr Vowels. Dr Vowels had stated that the complainant was fit for work and there was no deterioration in his condition. As a result Ms Baylie had decided that it was necessary to go back and look at Mr McDonald's work performance. Ms Masson had been complaining that Mr McDonald had not been at his desk regularly. On one occasion when Mr McDonald was supposed to have been at an enterprise bargaining meeting, Ms Baylie had phoned the Human Resources Manager and had been told that no enterprise bargaining meeting was underway.
In relation to Mr McDonald's incremental review in 1993, Ms Baylie said that Ms Masson had not wanted to grant an increase but they had decided that Ms Masson should rank him as satisfactory but address the work performance issues. She did not recall Mr McDonald coming to see her regarding his work performance. He had come to her about disability matters.
Regarding the office relocation, she was aware from Dr Vowels' report about the needs of the complainant so she felt that he should be stationed at the end of the office near the exit and not far from the men's toilet. This was all prior to the move. After the move he had not complained to her but Ms Masson alerted her to the fact that he was not happy with where he had been stationed. He was claiming that the sun was hitting his desk. Ms Baylie had not done anything about the matter however.
Because of the problems experienced with Mr McDonald's work she had considered moving him to another team. When she approached the Team Leader, though she had not identified Mr McDonald, the Team Leader had said: "if you're thinking of giving me Peter McDonald, I do not want Peter in my team".
Relating to the incident between Ms A and Ms Masson, Ms A had stormed into her office and complained about Ms Masson's behaviour in interrupting a meeting between Mr McDonald and her. Ms A had said it was in relation to a disability applicant. On further investigation it turned out that was not the case. It was a matter that Ms A could have handled herself. So they had no idea why Ms A was in Ms Masson's section. She agreed that she had said in the conversation something like "yes, Peter is forgetting things".
She considered that Mr McDonald's work performance had certainly deteriorated towards the end of 1993. He had always been a good worker previously, but complaints were coming in which indicated that he was not handling claims properly.
In relation to the calculation of possible compensation for Mr McDonald, she was asked about the superannuation calculations that form part of the complainant's claim. In relation to the calculation of 21% salary times years employed before 60, she said that the figure of 21% was not correct. The benefit, by reason of retrospective government changes to legislation, should be kept at 90%.
In cross-examination Ms Baylie said that some of the complaints about Mr McDonald were because he was absent for lengthy periods from his desk. She confirmed that he had made no complaints to her that he was unhappy with Ms Masson as his supervisor. After the MS Society meeting she had spoken to Ms Masson to see whether the workload in the team could be restructured. In suggesting to Ms Masson that Mr McDonald should be rated as "satisfactory" on his increment review, she had suggested that because "satisfactory" was basically the bottom line. The alternative was to rate him as unsatisfactory and she did not think that he was.
She agreed that although she had been receiving reports from Ms Masson she had not taken steps to consult or meet Mr McDonald to ascertain his side of the story. She had, however, gone to the General Manager about the matter. When Ms Masson had reported that the complainant refused to discuss the matter with her on a number of occasions she had then gone to Mr Bennett with a report. This had been prepared in November. She had raised the matter of Mr McDonald's forgetfulness in her meeting with Ms A and Ms Masson. That was in the context of Mr McDonald not doing his job properly.
In relation to the relocation move in November 1993, Ms Baylie had approved the arrangement. She said that Mr McDonald had never come to her and complained that it was hot. Ms Masson had told her that he had made a complaint. He had a temperature gauge and Ms Masson had thought that he was measuring the temperature. Ms Baylie had no idea where the temperature gauge came from.
5.1 Outline of the complainant's case
The complainant bears the burden of satisfying me on the balance of probabilities (the requisite standard is that described in Briginshaw -v- Briginshaw (1938) 60 CLR 336) of the existence of discrimination by subjecting the complainant to detriment in his employment (s.15 of the DDA) and harassment on the ground of disability (s.35 of the DDA).
Both allegations arise principally from conduct said to have been done by Ms Masson, and to a lesser extent by Ms Baylie, the respondent being liable for their conduct by virtue of sections 122 or 123 of the DDA. The complainant also submitted it was open to the Commission to find the respondent directly liable for inaction in not intervening to prevent problems arising between Ms Masson and the complainant that resulted in the alleged discrimination.
Mr Flower for the complainant submitted that the respondent had clearly breached both s.15 and s.35 by subjecting Mr McDonald to detriment in the course of his employment and harassment by reason of his disability. He emphasises that a determination of the facts turns principally on an assessment of the credibility of the witnesses. In that regard, he submitted that I should prefer the evidence of Mr McDonald to Ms Masson. In assessing the latter I should take into the account that the evidence suggests that there was sustained campaign on her part to make Mr McDonald uncomfortable and to cause him to resign from his employment with the respondent.
Whilst not the sole cause or motivation for her actions, Mr Flower submitted that the disability of Mr McDonald was a substantial or significant factor behind Ms Masson's conduct towards him.
Mr Flower further submitted that it was not the case that Mr McDonald would not perform as part of Ms Masson's team. Despite what she wrote in her personal notes Ms Masson stated in evidence that Mr McDonald had not indicated that he wouldn't work with her.
Mr Flower submitted that the comments made by Ms Masson when terminating the car pooling arrangement showed an indifference towards his condition. Though not in any way connected with the corporate liability, Mr Flower submitted that the incident could be used as circumstantial evidence relating to her attitude. He further submitted that Ms Masson's comments to Ms Black amounted to discrimination. They suggested that Ms Masson was proposing to get Mr McDonald stressed out in order for him to resign. He also relied on Ms Masson's alleged comments to Ms Black that she had bought a new car and could not handle driving with Mr McDonald any longer and that maybe he would resign due to his disability if he could not drive to work every day.
Mr Flower submitted that Ms Masson's comments reported by Ms A to the effect that the complainant needed to visit the toilet often and this was either attributable to pregnancy or his MS were further evidence of Ms Masson's frame of mind. It was also submitted that Mr McDonald was singled out by reason of Ms Masson's interference with his desk. For someone in Mr McDonald's position, this was calculated to treat him in an exclusory way.
Mr Flower also relied on other instances such as Ms Masson taxing Mr McDonald about talking to Ms Noronha through a third party as inappropriate behaviour. Similarly, Mr Flower also relied on the incident where Ms Noronha put up a bookshelf between her desk and that of Mr McDonald.
Also as an instance of harassment, Mr Flower relied on Ms Masson's comments about placing Mr McDonald's desk near the window in the relocation as "well that's why we put you there."
Further, relating to damages, Mr Flower submitted that a deterioration in Mr McDonald's work performance towards the end of 1993 was solely attributable to the discriminatory conduct of Ms Masson and to a lesser extent Ms Baylie and the refusal of management to deal with the problem.
5.2 Principal submission for the respondent
The fact that there was no mention of Ms in exhibits such as R 10-2 led the respondent to submit that contrary to the contention of the complainant, the Commission could not find discrimination against Mr McDonald by reason of his disability. Rather, the problems that arose between Ms Masson and Mr McDonald were because the latter had changed in his attitude towards her. It was submitted that there was no evidence that Mr McDonald was being treated in a differential or less than satisfactory or proper way because he suffered from a disability.
Other submissions of the respondent are dealt with in my discussion of Legal Issues in Section 6 below.
6. LEGAL ISSUES
Mr Burchardt for the respondent submitted that I could only make a finding of unlawfulness if I found that there was discrimination within s.15(2) of the DDA.
In determining whether there was discrimination "on the ground of" disability, Mr Burchardt submitted that I should interpret the phrase in accordance with the decision of the Victorian Supreme Court in University of Ballarat v Bridges  2 VR 418, following the decision of the High Court in Waters v Public Transport Commission (1991) 173 CLR 349. The emphasis of the Supreme Court is that something more than mere causality is required. The disability must have formed a step in the reasoning process behind the decision to take the adverse action. The ground of disability must, either consciously or unconsciously, have been the activating factor in the decision.
Translated to the circumstances of this case, Mr Burchardt submitted that there was no evidence on which to base a finding that Mr McDonald's condition of MS had grounded any discriminatory acts on the part of Ms Masson or Ms Baylie.
In addressing the issue of what could amount to discrimination within s.15 of the DDA, Mr Flower referred to the case of Australian Iron and Steel v Banovic (1989) 168 CLR 153 and relied on a passage in the judgment of Deane and Gaudron JJ at pages 176-177 to the effect that in order to constitute discrimination it is not always necessary for there to be an overt "consciousness" on the part of the perpetrator. What was important was to ascertain the basis of the act or decision; disability should be significant even if there were other factors involved.
I am of the view that it is open for me to find unlawful discrimination within s.15 derived, directly or indirectly, from unconscious as well as conscious motivation.
Translated to the present circumstances, even if the Commission were to take the view that there were multiple motivations on the part of Ms Masson ranging from personal animosity through to a threat to her management capacities, and even if there were no or only one or two singular references to MS, it was open to me to find that in fact on a number of occasions Ms Masson was using MS as part of her campaign to effect a certain end, that of causing Mr McDonald to cease employment in her section.
7.1 Findings concerning particular incidents
Before proceeding to make relevant findings, I should first address the issue of credibility. As counsel for both parties conceded, in the end this complaint largely turns on whose evidence I accept, Mr McDonald's or Ms Masson's.
It is the case that at times Mr McDonald's evidence was vague and contained discrepancies. His memory of particular events, and especially when they occurred was in some instances vague. But the overall impression I formed of him as a witness was that he was straight forward, direct, honest and largely credible.
Ms Masson, on the other, was extremely defensive and not very forthcoming when giving her evidence. This is understandable. She was under great strain. I should say straight away I do not consider that her replies to questions were consciously dishonest. But in many instances there were notable inconsistencies between what she first said and then, when referred to notes she had written, the concessions she then had to make. Several instances are mentioned below.
It is her notes which speak volubly about her state of mind at the relevant times. They disclose how her thoughts towards McDonald developed from initial fears on her part, when he came to her section in the first part of 1993, about his anti-female attitude, through a growing concern about undermining her leadership and management of her section, to outright suspicion of his plotting to lay charges against management overall. In her attempts to rationalise these telling statements in her notes I detected an inclination to reconstruct her version of critical events. Whilst not deliberately evasive or untruthful, I was not persuaded by her evidence concerning denials of statements she made (detailed below) about MS being a factor in her conduct or comments. I prefer the evidence in those instances of the complainant, Ms A and Ms Black.
I find that Mr McDonald had a good working relationship with Ms Masson after his appointment in 1990 through to 1992. His employment assessments at that time were satisfactory (C9 and C13) as was his assessment for 1992-93 (C18).
Mr McDonald was unsuccessful in his application for promotion at the beginning of 1993 missing out on a position obtained by Ms Murnane. It is clear that he was dissatisfied that he had been unsuccessful in his application (C17). I am prepared to accept that Mr McDonald did adopt an attitude towards Ms Masson and Ms Baylie that was antipathetic and confined to doing only the minimum necessary to cooperate with his supervisor.
I accept that on his return to the pension section on 17 May 1993 under Ms Masson from his secondment to the data integrity section Mr McDonald had some resentment in relation to female supervision. On the other hand, it is evident that by the end of May 1993, from Ms Masson's point of view, she was experiencing difficulties in relation to Mr McDonald (R10-2). As Ms Masson perceived it, Mr McDonald was resentful towards certain female colleagues. This led Ms Masson to record that "he's given Helen hell... He has big problems." Significantly, by the time that R10-2 was written, Ms Masson had reached the conclusion, as recorded there, that "Peter McDonald has to go. He is getting out of control... Another team, other work."
In these instances, as indeed in others, Ms Masson's notes speak volubly about her state of mind throughout the period in issue.
The complainant alleges that the discriminatory conduct and harassment manifested themselves through a number of particular instances. They were indicated by a continuing thread of hostility demonstrated by Ms Masson to the complainant. I shall deal with these severally, and not necessarily in strict chronological order.
(a) Breaking of the car pooling arrangement and subsequent meeting
In late July 1993 there occurred a critical incident which led Ms Masson to break off the car pooling arrangement. It is probable that Mr McDonald did drive in a distracted and possibly negligent manner which caused great fright to Ms Masson. It is also likely that he engaged in vehement criticism of people in management positions with the respondent. Ms Masson was so upset by this passage of events that she required three days off work. On her return to work there was a confrontation between the two of them over the issue of the car pooling arrangement.
I take the view that Ms Masson had good cause to break off the car pooling arrangement. It is apparent that Mr McDonald's driving on the night in question was such as to give rise to a serious concern for safety, even if he did not realise it. His inattention may have been as much due to his emotional agitation as to MS itself. But it obviously caused a serious shock to Ms Masson requiring her to take three days leave. The breaking off of the arrangement was not itself, in my view, an act of discrimination, certainly not on the part of the respondent. Nor was the reason given by Ms Masson - that she was concerned about Mr McDonald or his wife suing her - an act of harassment. I regard that as an ill-founded remark which demonstrates her extremely suspicious attitude that was crystallising after June 1993. It confirms the view I otherwise take of Ms Masson that at that stage she was rapidly seeking to withdraw from a relationship of friendship towards Mr McDonald and to distance herself from him in their work relationship. This was with a view to stamping out what she saw as insubordination and rebellion and a threat to her reputation as a manager. Unfortunately, this context coloured her actions and statements towards Mr McDonald throughout the latter part of the year.
It is also true that for his part Mr McDonald was maintaining a feisty and independent stance both towards the performance of his actual duties (which he was prepared to debate with management) and to his attitude towards co-workers, particularly female. It is obvious that he was in fact aggrieved by the promotion of Ms Murnane in preference to him and that this was the genesis of much of his dissatisfaction which crystallised in his unwillingness to accept Ms Masson's supervision of him, which became increasingly adversarial from July to November 1993.
The upshot of this was a meeting which is recorded in a note made by the complainant relating to a meeting between him and Ms Masson on 21 July 1993 (C19). In it he records first that he told Ms Masson that he had a problem about one of his co-workers, Ms Skelton. He felt he was not being supported by Ms Masson. He was then upset that Ms Masson told him that she would stop driving to work with him, giving as reasons that she was scared she would be sued if there was an accident and that she objected to the kind of comments that Mr McDonald had been making about management on the way home.
It is clear from the note that Mr McDonald was put out by the failure to continue this car sharing arrangement.
What is significant is that he then goes on to record:
"I was disgusted when Janet referred to my Multiple Sclerosis while criticising me. I told her that I felt she had shown obvious signs that she had no respect for me. I then left the office."
This, to my mind, is of great importance. After careful consideration I consider it was a true reflection of something that had occurred during their conversation. I find that Ms Masson did in fact make critical comments in the course of the meeting about the complainant concerning his MS. I do not accept Ms Masson's denial in that regard. Moreover, I find that this was not simply some comment by Ms Masson expressing concern that his MS condition might have been affecting his work.
It is also evident that after this conversation the breach between the two was effectively reaching a point where it was becoming irreparable.
(b) The meeting with the MS Society/Dr Vowels
At the same time, due to concern about whether MS was affecting Mr McDonald's performance, the decision was made by the Board's management probably in July 1993 to seek advice from the MS Society. This arose from concerns expressed to management by Ms Masson in the first instance. It also was consolidated by absenteeism and by observations by Mr Bennett of the complainant's gait. Ms Masson was not involved in the decision; it was made by senior management.
The outcome of that meeting, and assessments made by Dr Vowels and Dr Tan, was that Dr Vowels was of the view, professionally, that MS was not affecting Mr McDonald's performance significantly and that he would be able to cope with his work requirements provided certain precautions were taken, including not working in a hot location.
With respect to Mr McDonald's condition of MS, while I accept the evidence of Dr Vowels that as at August 1993 it had not deteriorated to the extent that it seriously affected his capacity to carry out his duties at work, I do accept the evidence of Mr Bennett who personally observed Mr McDonald veering unsteadily on his feet, backed up by the evidence of Ms Masson about his driving home in July 1993, that MS was capable of and did in fact affect him in relation to his physical movement. Obviously Mr McDonald was also affected by stress and tiredness at the relevant times. His state of mind in which he was increasingly agitated about, and resentful towards, management is likely to have aggravated his physical situation. The decision by Mr Bennett in conjunction with Mr Frewin and Mr Swann to approach and then institute a meeting with Dr Vowels was an administrative step arising from genuine concern about Mr McDonald. By mid-1993 Mr McDonald obviously was defensive towards management and though he took an adverse view to the approach to the MS Society by Mr Swann I do not think there was anything sinister about that approach. I do not regard it as in any way constituting an act of discrimination by the management of the respondent nor harassment.
Whilst some criticism was made of Dr Vowels' assessment as being partisan, I am satisfied that it was made on the basis of her objective testing and was generally reliable. I am not prepared, however, to put any weight on later contacts that Mr McDonald made with her in October 1993 and 1994 in which he expressed concerns about the tension arising from the interpersonal problems at work. The fact that he complained to her may provide some verification that he was distressed. But that was hearsay evidence and adds nothing to what the complainant had to say himself about the state of affairs in late 1993 and the first part of 1994.
(c) The alleged derogatory comment to Ms Black
With reference to the issue of whether Ms Masson made remarks to Ms Black to the effect that she hoped Mr McDonald would leave work because he wouldn't be able to drive himself, I find that Ms Black's evidence was credible. An attempt was made to discredit her evidence on the basis of whether or not she had remained in contact with Ms Masson after she had left employment with the respondent and, in particular, whether she had a telephone conversation with Ms Masson in July 1993. Ms Black was obviously strongly supportive of the complainant when giving her evidence and undoubtedly there is a conflict concerning whether she rang Ms Masson a month after she left work. Given the proximity of the call to her leaving, I do not find it implausible for Ms Black to have rung Ms Masson at that time, even if there was little to sustain a continuing relationship once the working context faded. Nevertheless, having observed her demeanour, I accept Ms Black's version about what Ms Masson is alleged to have said critically about Mr McDonald's MS condition.
Since the comment was not made to the complainant it cannot without more amount to harassment. If it had been made to Ms Black while she was still employed by the respondent, it could perhaps have amounted to discrimination in terms of disparaging one employee before another. But since Ms Black had by then left the Board I do not consider it involved a breach of s.15 of the DDA.
What the comment does show, however, is that the complainant's condition of MS was a factor in the mind of Ms Masson at the time when contentious events were in train between her and Mr McDonald and I infer from her remark a disposition that suggests she was conscious that his MS made him vulnerable to attempts on her part to drive him out of her section and possibly employment with the Board. I regard it as important confirmatory evidence.
(d) The increment interview
From exhibit R10-8A, a report relating to Mr McDonald's assessment for an increment, upon which Ms Masson has made notes, it is clear that Ms Masson by early August at the earliest and certainly by November 1993 felt the relationship had deteriorated to the point where she was embarrassed by Mr McDonald's behaviour in terms of reflecting on her management capacities. She was convinced that she would not cooperate with her. In my view it does present a vivid portrayal of her state of mind which had become obsessively suspicious about Mr McDonald and his motives and highly antagonistic towards him. In her mind she saw him as not simply representing a threat to her management capability but also as engaged in a general campaign against females in positions of authority. It is apparent to the Commission that though Ms Masson recommended the complainant for a salary increment, it was only due to representations by Ms Baylie. Ms Masson's recommendation of "satisfactory" is not inconsistent with her subjective view that he was performing poorly in his work and in fact, adversely to her interests.
However, this note does not of itself constitute discrimination or harassment.
(e) Interference with the complainant's desk and files
With respect to Mr McDonald's complaint about Ms Masson deliberately rearranging the files on his desk with a malicious intent to humiliate him and perhaps cause him to leave, I am not prepared to make a finding to that effect. It is quite likely in my view that Ms Masson out of frustration and annoyance with Mr McDonald somewhat officiously and insensitivity rearranged the files on his desk but there is no basis in the evidence to suggest that this was with the intent alleged.
(f) Derogatory remarks made to Ms A
With respect to comments made by Ms Masson to Ms A at a point in the first half of 1993 (probably around May) I prefer Ms A as a witness to Ms Masson on the point. Again, there was a degree of partiality on the part of Ms A. She appeared to me to strongly support Mr McDonald throughout the course of his imbroglio with Ms Masson, to the extent that she herself was involved. She had a proper interest in seeing whether he was subject to discrimination since she was appointed by the Board as an equal opportunity officer. She appeared to me to be a straightforward and frank witness whereas Ms Masson was defensive, and inclined readily to denial and rationalisation.
I accept that Ms Masson did disparage Mr McDonald to Ms A about his condition. This is not, of course, itself harassment. But it is indicative of Ms Masson's disposition in terms of MS forming a circumstance in which Mr McDonald was vulnerable.
The incident is capable of being, and was in my view, one involving unlawful discrimination. To address a derogatory comment to a fellow worker about aspects of another worker by reference to a disability of the latter, and thereby to lower the dignity and regard of other persons toward that worker is to treat the latter differentially. The DDA has among its objects the suppression of attitudes that foster disparagement of persons with disabilities. In this instance, I find Ms Masson's comments to Ms A did represent unlawful discrimination.
(g) Increasing the complainant's workload
It is in that context that I also accept that Ms Masson did comment to Ms Black in the middle part of 1993, either May or June, that it would be a good idea to load up the work on Mr McDonald in the hope that it might cause him to leave. Despite the fact that the comment could have been intended to convey that, given the increase in the workload on the whole section, it would be necessary to increase Mr McDonald's load, I do not consider Ms Black misinterpreted what Ms Masson said and that included reference to driving Mr McDonald out of the section. That is obviously consistent with Ms Masson's frame of mind at the time as her relationship with Mr McDonald and her suspicions about him were developing momentum.
I do find therefore that Ms Masson applied pressure on the complainant to increase his performance. While partly this was engendered by her proper concern to get through the increased work load in mid - 1993, it was also, collaterally, an endeavour to put stress on him so that, given his MS condition, he might resign or request redeployment. This was directed to him personally and amounted to unlawful discriminatory conduct.
(h) The October/November 1993 move
The move in office location occurred as a result of decisions made by higher management. Ms Masson was not involved in it. She was, however, the only person in a supervising position at the time Mr McDonald was engaged in making the move. In response to his complaint that he did not want to be at the particular desk allocated to him, I accept her version that she made a genuine response to the effect that he could move to an adjacent station. I further find that there was a genuine attempt by the respondent's officers, including Ms Baylie, to accommodate Mr McDonald's problems about needing to avoid being in a hot situation and his needs for proximity to the filing cabinets and the toilet. When Mr McDonald complained to Ms Baylie about the position being hot because of its proximity to a photocopier she saw to it that the photocopier was moved. Nevertheless, it is evident that the relationship between Mr McDonald and Ms Masson had reached an impasse. Her note at exhibit C25 makes it evident that there was no possibility, as Ms Masson saw it, to work through the difficulties that then existed.
This brings me to the contentious issue of whether or not, when Mr McDonald complained to her about the position in which he was placed being hot, she replied "That's why we put you there." Despite suggestions that he misinterpreted what Ms Masson intended to convey to him, I am satisfied and do find on balance that she did say the words attributed to her and that they were made with implied reference to his MS condition. Her evidence about this incident was to my observation quite unconvincing and represented at first an attempt to deny that anything along those lines were said, and later to rationalise it. I prefer Mr McDonald's version.
I do not accept however, that Ms Baylie or Ms Masson deliberately placed Mr McDonald near the window when the section was relocated, as an attempt to make him hot and discomforted. Certainly Ms Masson was not involved in that decision.
On the other hand, though his location at that point was not deliberately designed to that end, I am persuaded that Ms Masson was driven by her state of mind when Mr McDonald protested about the site, to remark "that's why we put you there." Her fears and animosity to Mr McDonald had developed by November 1993 to a stage where it is quite likely she would make a remark of that kind in order to place emotional pressure on him and to indicate that he was not wanted in the section. I also find that the remark was directed to Mr McDonald with the implication of his unfitness due to his condition of MS and was, whether consciously or not, said with a view to humiliate him.
(i) The bookshelves incident
I take the same view in relation to the incident concerning the positioning of the bookshelves between Ms Noronha and Mr McDonald's desks and Ms Masson's comments in relation to that situation. It is obvious that by November 1993 the section was divided between the supporters of Ms Masson, and Mr McDonald, whose main support was Ms A from outside the section. Whether or not the bookshelves were deliberately interposed is an open question in my mind. However, when Mr McDonald raised it with Ms Masson I again accept that she did make disparaging remarks, referring impliedly to his MS condition, to the effect that the bookshelves were placed where they were or would in any event block off the sight of Mr McDonald from his co-workers. On balance, it would also appear that she commented to Ms Naronha or Ms Skelton that the latter could put the bookshelves where they would block off her view of the complainant. This is consistent with the evidence, particularly illustrated by Ms Masson's file notes to herself, which not only demonstrate a complete breakdown in their ability personally to communicate and sort out their problems but also a disposition to take occasion to criticise him and wound him verbally. I find that these disparaging comments singling Mr McDonald out did amount to discriminatory conduct based on his disability.
(j) The Collingwood trophy
I do not accept that the management of the respondent, including Ms Masson, was in any way involved in the incident relating to the Collingwood souvenir.
(k) Ms Masson's call to the MS Society
I do not draw any adverse conclusions from the fact that Ms Masson went out of her way to return to the call to the MS Society. No doubt her suspicions were aroused and she may have been acting in an unduly intrusive way but I do not consider this constitutes either discrimination or harassment.
(l) The incident about Audrey
Concerning the incident involving upsetting Audrey, again this is part of the peripheral aspect of the case. The only relevance that I am prepared to draw from it is that the fact that Mr McDonald received a Christmas card from Audrey tends to support his side of the story that he was on good terms with Audrey and remained so. Ms Masson's contention to the contrary demonstrates rather that she was highly sensitive to any actions which she saw as anti-female on the part of Mr McDonald. Her attitude obviously coloured her response in such circumstances and confirms my view that her credibility as a witness is diminished in comparison with Mr McDonald.
(m) Termination of employment
When Mr McDonald went on leave in November 1993 it is clear to me that it was primarily because of the stress arising from his deteriorating relationship with Ms Masson. He himself did not attribute his inability to continue to work to MS. It was undoubtedly stress that was the reason that he took sick and annual leave and then went on to apply for indefinite leave without pay. In his application for indefinite leave dated 15 February 1994 (R5) he widens his reasons to include "the deterioration in my general health over recent months." Stress was also the basis for his unsuccessful application to WorkCover. (I say unsuccessful with respect to the claim overall, although there were some negotiated minor benefits through conciliation.)
Having had his application for leave without pay refused Mr McDonald obviously changed course. The correspondence between him and Mr Frewin (C30, C31) mark a redirection towards considering Mr McDonald as unable to continue in employment on medical grounds in which MS would be an important aspect.
As at February 1994 there was, in my view, a fairly complex medical situation. It is significant that Mr Frewin (R6) comments on the situation as one where "his health has seemingly deteriorated further in recent weeks." From then on the process of application proceeded to the outcome where disability benefits were granted in the light of two doctors' reports (R7, R8). It is clear that in deciding to approve the application for disability benefits, Mr Bennett relied on the judgment of Dr Heath who was the Board's doctor. With the prospects of the disability pension, Mr McDonald submitted his resignation (C34).
I find that throughout his dealings with Mr Frewin and the higher management of the respondent in relation to the termination of his employment there is no evidence of discrimination or harassment on the part of the respondent.
I also find that whilst there was an element of sympathy and perhaps generosity towards Mr McDonald's situation, and even a willingness on the part of the management of the respondent to facilitate his leaving, there is no sufficient basis on which to reject the medical conclusions of the doctors who assessed Mr McDonald at the time. Much has been made of the discrepancy between Dr Vowels' report in July 1993 and the ultimate assessment in and around February 1994. It is suggested that the decline in Mr McDonald's ability to continue at work is too dramatic to be explained solely by a deterioration in his condition of MS.
In my view, in the very complex situation that had emerged in the latter half of 1993, the decline in Mr McDonald's health probably could not be attributed solely to MS. The general health condition that was assessed in February 1994 obviously put great weight on MS and I accept that it was objectively the principal reason why he was medically assessed as unfit to continue. The complainant alleges that he was not so incapacitated by MS that he was unfit to work. Indeed, he relies on Dr Vowels' assessment in February 1997 as proving his MS condition would not have prevented him working on past 1994. He insists that he would have been able to continue for at least another couple of years in employment with the respondent despite the MS.
I am not prepared to so find. Such a finding is inconsistent with his own application and the medical assessment made at the time. I am not satisfied that there is sufficient ground to disturb that finding. The application at the time by the respondent was bona fide and treated as such. The acceptance of his resignation does not constitute in any way an act of discrimination.
(n) General summary
While I am prepared to view the conduct of Ms Masson in particular and to some extent the support forthcoming from Ms Baylie for Ms Masson's position, as flowing primarily from a situation attributable to Ms Masson's fears and suspicions about Mr McDonald's intentions to sue or charge management and herself in particular, I find nevertheless that her awareness and advertence to Mr McDonald's MS condition was in fact a stimulus to her making derogatory remarks about Mr McDonald. At least unconsciously, but rather I incline to the view, advertently, I find that those derogatory remarks were directed at Mr McDonald with a view to humiliating him and to singling him out for differential treatment based on the fact that he has an MS condition. The same objective lay behind her putting pressure on him in relation to clearing his workload. As such, I find the conduct of Ms Masson constituted unlawful discrimination within s.15(2) of the DDA. The remarks I have identified above exhibit a mental element on the part of Ms Masson which indicates a disposition to cause Mr McDonald to be removed from her section and possibly from employment with the respondent. I think that Ms Masson did have the requisite state of mind to render the differential treatment of Mr McDonald unlawfully discriminatory. There was an intent in the nominated actions and remarks which was prejudicial to Mr McDonald by reference to his condition, including when the comments were made to other employees.
7.2 Liability of the respondent
For me to make a finding against the respondent as employer, it is necessary for me to decide whether the conditions in ss.122 or 123 of the DDA have been satisfied.
To start with, I do not think that there is any ground for a finding that the respondent caused, instructed, induced, aided or permitted Ms Masson or Ms Baylie to do any unlawful discriminatory act.
I do find, however, that the actions engaged in by Ms Masson constituted conduct that was in engaged within the scope of her actual or apparent authority. The issue then arises whether, for the purposes of s.123(2) of the Act, the conduct engaged in by Ms Masson on behalf of the respondent, being within the scope of her actual or apparent authority, can be attributed to the respondent. Subsection (2) provides a defence to the respondent if it can establish that it took all reasonable precautions and exercised due diligence to avoid the conduct.
In that regard I find that the oversight and involvement of the higher echelons of the respondent, including Mr Bennett, Mr Frewin and Mr Swann do not establish any pattern of reasonable intervention which was directed towards preventing or remedying Ms Masson and Ms Baylie from dealing with Mr McDonald in the way that they did. There was obviously a view held by higher management, and in particular Mr Bennett, that Mr McDonald was posing a problem. There was clear knowledge that there was a deterioration in the relationship between Mr McDonald and Ms Masson. The managerial response was to determine whether Mr McDonald's MS condition contributed to what was perceived to be a deterioration in his working capacity. But there is nothing to indicate to the Commission that the higher management of the respondent was prepared to intervene directly in remedying the developing tensions between Ms Masson and Mr McDonald. It was largely left to Ms Baylie's own involvement and there was insufficient attempt to address the very real problems had been engendered by the breakdown in the relationship. Whilst higher management had little reason to appreciate that Ms Masson unconsciously or otherwise was prepared to make unfavourable remarks to Mr McDonald about his MS condition, a more reasonable and diligent approach would have been to sort out the whole situation which would have removed any cause for her rather desperate but ill-chosen comments. The defence based on s.123(2) fails.
Mr Flower also submitted that I could make a direct finding of liability against the respondent. This was based on the fact that Ms Masson was herself part of the management structure of the respondent. She had administrative control over Mr McDonald and was part of the management hierarchy. That would be sufficient to make a finding that the respondent was directly liable. As I have already concluded that the respondent is vicariously liable pursuant to s.123, I do not consider it necessary to address this submission.
It falls to decide whether the conduct of Ms Masson constituted harassment and, if so, whether this can be attributed to the respondent. There is no basis, as I see it, for any such finding in relation to the conduct of Ms Baylie.
Mr Burchardt submitted that in order to make a finding of harassment on the ground of disability I would have to find more than a single instance of such adverse treatment or criticism. A repetition or pattern of incidents would be required. At most, he submitted, I could only find that Ms Masson may have made a direct remark about MS in July 1993, followed up by the comment about "that's why we put you there" in November 1992. These were not enough to constitute harassment in terms of the DDA.
With respect to harassment, Mr Flower emphasised that the relevant words in s.35 were "in relation to the disability". Mr Flower conceded that to constitute harassment there must be something in the nature of a course of conduct rather than a single act. Given the seriousness of an allegation of harassment, Mr Flower accepted that even if I were to apply the standard of proof indicated in Briginshaw v Briginshaw, I should nevertheless be so satisfied.
It is not necessary for me to address the submission that more than a single instance of adverse treatment is necessary to constitute harassment because I am clearly satisfied that there were more than two occasions on which Ms Masson made adverse comments which impliedly or expressly were framed to cause discomfort or humiliation to Mr McDonald concerning his condition of MS. They were not isolated incidents. They were imbedded in a much wider situation of animosity between the two antagonists. When they occurred they were part of a general intent on the part of Ms Masson to drive Mr McDonald out of her section and possibly from employment from the respondents. I am satisfied that harassment within the terms of the DDA did occur.
For the reasons given above I am satisfied that liability for this harassment can be attributed to the respondents.
Having found that the respondent, through Ms Masson and through its default in not intervening through Ms Baylie and other managers to resolve more effectively the conflict between Ms Masson and the complainant, unlawfully discriminated against, and unlawfully harassed the complainant, I turn to consider what should be an appropriate award of damages.
8.1 Special damages
So far as special damages are concerned, and particularly compensation for economic loss, the central issue was whether Mr McDonald would have been able to continue in employment after February 1994. If not, there was no basis on which a claim for loss of wages or the further accrual of superannuation benefits could be sustained.
Mr Burchardt submitted in this respect that Mr McDonald would not have been able to continue in employment after February 1994 and that no special damages were payable. If, however, I were to find against the respondent in terms of a continuing ability for employment it was submitted that there were offsetting features such as Mr McDonald's mobility allowance that should be taken into account. If I were to determine special damages should be paid in respect of loss of wages, to the extent that an award of damages were made by reference to income, it was submitted that the figures relied on should be net figures (Slifka -v- J W Sanders Pty Ltd (1995) 67 IR 316).
Mr Flower submitted that there was evidence from Dr Vowels that Mr McDonald could perhaps have worked for another three to five years after his retirement. It was submitted that I should not treat the finding by the trustees of the superannuation fund as definitive, notwithstanding it was formed on the basis of the opinions of two qualified medical practitioners. In particular, Mr Flower pressed the view that the opinions expressed by the medical practitioners did not meet the certification requirements that were necessary in order to satisfy the trustees that a disability benefit should be paid.
As to whether to include an allowance for tax, Mr Flower submitted that there should be no discount for tax as it was not clear that any tax as it any particular amount of tax would be levied in respect of the award of damages to the extent that the award was compensation for lost earnings.
Having carefully considered these submissions, I accept the respondent's submission that no award should be made in respect of loss of wages or further accrual of superannuation benefits. Although I appreciate Mr Flowers' submission that the matter is not concluded by the opinion of the two medical practitioners, I take the view that whilst not strictly complying with the actual requirements of the superannuation assessment process in regard to every detail, the opinions were formulated in a way that generally indicated that the medical conditions for granting disability benefit were satisfied. In that regard it is important to remember that Mr McDonald himself instigated the process. Whilst this may not constitute an estoppel, it does suggest that his own opinion was that he was unable to continue in employment with the respondent.
Thus, due to Mr McDonald's resignation and his acceptance of disability benefits based on reasonable medical opinion at the time, I decline to make a finding on the evidence that Mr McDonald did retain a residual capacity to engage in further employment after February 1994. There is no case, therefore, for awarding compensation for economic loss after his resignation from employment with the respondent.
With respect to the allegation that Mr McDonald had only made ineffectual attempts to obtain further employment, I am of the view that it is unnecessary to make any finding in this regard. That would only relevant if it were suggested that he was in a position to mitigate an award of damages based on loss of wages. Having made no such finding I need not address mitigation.
8.2 General damages
In considering an award of general damages I should say first that in my view this is a complaint which involved serious breaches of the DDA. Whilst there were other complicating aspects of a break-down in relations not involving MS, at the core is the work situation in 1993 and early 1994 which resulted in the destruction of the complainant's capacity for employment. The pressure put upon him and the adverse work atmosphere directed at him by Ms Masson resulted in a situation in which by early 1994 his health had deteriorated to the point where he saw fit to resign. Whilst not the sole cause, the unlawful conduct grounded on his MS condition contributed to that outcome.
While I am not prepared to make an award of damages for economic loss, I do consider the circumstances surrounding the termination of Mr McDonald's employment to be relevant. I draw the inference from Mr McDonald's conduct at the time that he was in a situation of considerable distress. His annual and accrued leave had finished and he was unable to face the prospect of resuming working in a relationship which was painful and humiliating to him. It is therefore relevant, and I so find, that the discriminatory treatment that he had encountered in his employment with the respondent was an aggravating circumstance in his retirement and should be reflected in the level of compensation paid to him.
It is also relevant that the unlawful conduct occurred over a period of about six months.
As I have also found, senior management of the respondent could have taken steps to resolve the problems but largely, apart from the engaging the MS Society to review the complainant, were indifferent to what was going on in the pensions section between Ms Masson and Mr McDonald. Ultimately, the impact was severe.
Turning to harassment, the denigration of the complainant was largely calculated to drive Mr McDonald from the section. He was singled out by his Team Leader with that in mind.
In respect of quantum, Mr Burchardt submitted that some guidance could be gained from sexual harassment awards. Having regard to the magnitude of the conduct in the instant case it was submitted that no award should be made for general damages above $8,000.
I cannot accept this submission and, in the circumstances, I consider a larger award of compensation is warranted, encompassing both the unlawful discrimination and the harassment.
I find that an amount of $22,000 should be paid by the respondent to the complainant for general humiliation and distress leading to a breakdown in his health and general loss of enjoyment.
The respondent should also provide the complainant with a written apology.
I find the complaint of discrimination and harassment against the respondent substantiated and make the following declarations:
1. The respondent to pay the complainant the sum of $22,000 for general humiliation and distress within 28 days of the date of this decision.
2. The respondent to provide the complainant with a written apology within 28 days of the date of this decision.
 References are to exhibit numbers.
 The name of this witness has been edited out of this report to protect the privacy of the witness