Legal case summaries from Equal Time - Anti-Discrimination Board : Lawlink NSW

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Legal case summaries from Equal Time Age Age discrimination - café seeking “young team” discriminated against older applicant Age discrimination - provision of insurance Age discrimination - Virgin Blue face $80,000 damages for age discrimination Carers responsibilities Carers’ responsibilities - case dismissed Carers’ responsibilities - changes to hours not unfair Carers’ responsibilities - part-time work Carers' responsibilities - refusal to allow part-time return to work discriminatory Disability Disability discrimination - anti-bullying HR policy upheld Disability discrimination - casual worker succeeds in disability claim Disability discrimination - colour-blind man wins right to drive ambulance Disability discrimination - colour blindness not a barrier Disability discrimination - demotion due to depression discriminatory Disability discrimination - depression, $83k award after indirect bias Disability discrimination - indirect disability discrimination in employment Disability discrimination - inherent requirements still a defence if complainant not informed Disability discrimination - lifting inherent requirement of store job Disability discrimination - ‘medically retired’ prison officer reinstated Disability discrimination - OH&S Disability discrimination - sickle cell trait Disability discrimination - redundancy Disability discrimination - susceptibility to panic does not affect compensation Disability discrimination - visual acuity in employment Disability discrimination - worker with psychiatric disability reinstated Dress codes Dress codes - nose stud ban reasonable Emails Emails in the workplace Family responsibilities Family responsibilities - Customs Service meets obligations on family responsibilities Family responsibilities - leave entitlements Family responsibilities - unlawful dismissal claim upheld Grievance handling Grievance handling Homosexual Homosexual vilification - apartment block Homosexual vilification - internet Marital status Marital status - single mother in employment Maternity leave Maternity leave - denial of full time work, Queensland sex discrimination claim upheld Maternity leave - return to work Maternity leave - Nike discriminates against parent Maternity leave - right to comparable work position Maternity leave - nurse victimised following return to work Maternity leave - WA mineworker maternity leave decision upheld Policy Policy development Pregnancy Pregnancy - pregnancy dismissal claim upheld by AIRC Pregnancy - pregnant employee can use accrued sick leave entitlement Pregnancy - light duties, worker discriminated against Race Race discrimination - rostered off because of accent Race discrimination - accommodation Race discrimination - employment in a club Race discrimination - hotel's door policy Race discrimination - real estate agency Race discrimination - terrorist insult costs employer 25,000 Racial vilification - anti-Semitism, internet Racial vilification - anti-Semitism, pamphlets Racial vilification - in an apartment block Racial vilification - intention to incite hatred Racial vilification - interpretation of the word ‘Incite’ Racial vilification - $1.9 million in damages for workplace bullying and racial vilification Religious belief - QLD: “religious belief” includes absence thereof Religious discrimination - no exemption for Baptist Church Services Services and discrimination Sex Sex discrimination - equal remuneration principle Sex discrimination - wearing an earring in the workplace Sexual harassment Sexual harassment - AIRC upholds harassment dismissal Sexual harassment - butcher sexually harasses female salesperson Sexual harassment - harasser reinstated after dismissal for sexual harassment Sexual harassment - Railcorp's inadequate investigation of sexual harassment Sexual harassment - inadequate procedures to prevent sexual harassment Sexual harassment - inappropriate comments Sexual harassment - NSW Police Service found vicariously liable for sexual harassment Sexual harassment - male apprentice sexually harassed and bullied Sexual harassment - sacking upheld Sexual harassment - Navy vicariously liable for sexual assault, harassment and victimisation Sexual harassment - shop owner sexually harasses under-18 workers Sexual harassment - vicarious liability for sexual harassment against a receptionist Transgender Transgender discrimination in employment Victimisation Victimisation relating to a sexual harassment complaint Victimisation relating to a complaint lodged with the Human Rights and Equal Opportunity Commission Age discrimination Age discrimination - café seeking “young team” discriminated against older applicant The Queensland Anti-Discrimination Tribunal found that a café discriminated against a chef when he replied to an advertisement for someone to join a “young team”. The 46-year-old man said that when he rang the café, a director of the company that owned the café asked him how old he was. When he said he was over 21, she told him to drop his resume in to the cafe. He said that when he went to the café he had a further conversation with the director in which he told her he was 46 and she said she only had a young team. She said she would set up a trial but he did not hear from her again. At the hearing, the director said the advertisement used the words “young team” because some older workers did not like working with young people. She said she had terminated the original phone call because she did not like the man’s attitude, and she denied asking him to drop in his resume or speaking to him in person at all. However the Tribunal found that her evidence was “evasive and unhelpful”. The Tribunal ordered $2,500 in damages for hurt and humiliation, but denied the man compensation for lost wages. Gardener v Norcott [2004] QADT 39 Age discrimination – provision of insurance This case was an unsuccessful complaint of age discrimination in the provision of goods and services lodged by a barrister against the Barrister’s Sickness and Accident Fund Pty Ltd. The Fund had informed the complainant that it would not extend its insurance cover to clients over the age of 70. Although there is an exception to the age discrimination provisions in section 492YT of the Anti-Discrimination Act 1977 (NSW), relating to the terms on which annuities, life assurance policies and accident or insurance policies are offered or may be obtained, the complainant argued that the exception did not apply in this instance. The complainant argued that the exception did not provide a defence to the unlawful act of refusal because the exception is confined to ‘the terms’ on which insurance could be offered and not to a ‘refusal’ to provide insurance. The complainant sought to rely on the High Court decision of AMP v Goulden as authority for the proposition that there is a distinction between ‘refusing to provide goods and services’ and the ‘terms on which the other person [was] provided with the goods and services’. Accordingly, he argued that the exception would be limited to discrimination ‘with respect to the terms’ on which the relevant policy was offered and not permit an outright refusal to offer life insurance. However, the Tribunal found that Goulden’s case was not relevant to the complainant’s case. Instead the Tribunal referred to Rose v Secretary, Department of Social Security. This case noted that exceptions in beneficial legislation should not necessarily be interpreted narrowly in favour of the intended beneficiary. Rather, the court held that attention should be paid to the purpose of the provision. This means that if the provision was construed narrowly, that is, to limit it to ‘terms’ and not ‘refusal’, then the intention of the provision would be destroyed. Following this reasoning, the Tribunal found that the Barrister’s Sickness and Accident Fund had satisfied the relevant provisions of section 49ZYT. It found that the respondent fund’s decision to refuse cover, although based on the applicant’s age, was also based on relevant actuarial or statistical data and was reasonable having regard to the data available and to the mutual nature, size and financial viability of the fund and therefore its actions were not unlawful. The complaint was therefore dismissed. Leslie v Barristers’ Sickness and Accident Fund Pty Ltd [2003] NSWADT 216 Age discrimination - Virgin Blue face $80,000 damages for age discrimination The Queensland Anti-Discrimination Tribunal determined substantial damages against Virgin Blue following a Tribunal decision that it had discriminated against eight women over the age of 36 who applied for flight attendants’ jobs but were rejected because of their age. The case involved a group of experienced flight attendants, aged between 36 and 56, who applied for positions with Virgin but were rejected after attending the group assessment stage of its recruitment process. In determining the damages Tribunal member Douglas Savage SC said the rejected flight attendants had ‘at least as much chance as any other person displaying the requisite behavioural competencies and other matters necessary to obtain employment’. ‘It is manifestly unlikely that the complainants, all of whom were trained flight attendants, would fail basic training in the skill in which each had been performing for many, many years.’ ‘Further, their life experience and maturity probably would have seen them do well in the situation of a personal interview. ‘In my view, each would have been more likely to obtain employment than a ‘newcomer’,‘’ he said. While Virgin Blue had actively sought out former Ansett staff because of their qualifications and experience they ‘did nothing to address the concern that its recruitment process for a very significant period did not employ any one over 36 years of age, although the selection process was professedly age neutral and there were substantial number of older applicants for employment after Ansett collapsed’ Tribunal Member Savage said. Tribunal member Savage found that while the initial discrimination was unintentional, the system of assessment was deficient and ‘too cursory to properly test behavioural competence, rather than irrelevant personal features such as age’. He found that Virgin Blue’s recruitment processes for cabin crew was not merit based, and ‘treated older people differently than younger people in similar circumstances’. Tribunal member Savage criticised the airline’s argument that any general damages should be nominal, and that the injury the attendants had suffered was ‘not great’. He said this trivialised Virgin’s ‘significant contravention’ of the State Anti-Discrimination Act. He said the airline’s action in ‘very publicly’ arguing there was no basis for the complaints had ‘exacerbated the affront’ to the applicants and justified a greater amount of damages. Tribunal member Savage awarded between $7,000 to $12,000 in total damages to each of the former flight attendants, plus interest. The women also won costs. Hopper and others v Virgin Blue Airlines Pty Ltd [2006] QADT 9 (29 March 2006) Carers responsibilities Carers’ responsibilities – case dismissed This case is the first decision that the Administrative Decisions Tribunal made in relation to an alleged breach of the carers’ responsibilities provisions of the Anti-Discrimination Act 1977 (NSW) (ADA), which came into effect on 1 March 2001. The complainant was employed as a senior manager by the respondent. She alleged that her employer discriminated against her on the basis of her carers’ responsibilities and her sex when they required her to be based in Gosford from 21 October 2002, and attend that office for around five days per fortnight, along with the majority of employees previously working at the organisation’s head office in Sydney. The complainant said that she could not comply with the requirement because of her responsibilities for the care of her two youngest children, who were aged six and eight. The respondent submitted that the complainant was not a person who had responsibilities as a carer as defined by the ADA, and had failed to identify any specific responsibilities that had been affected by the requirement to be based in Gosford. It argued that it could never accommodate the requirements of a parent who has 24-hour responsibility for the needs of their child. However, the Tribunal supported a broad interpretation of the meaning of carers’ responsibilities, saying that ‘there is no basis… for confining the responsibilities to care for and support another person to particular categories of care and support’, such as dropping off, picking up or attending to a person who is sick. The Tribunal found that the complainant has responsibilities to care for and support her two youngest children. The Tribunal accepted that the employer had imposed a requirement on the complainant to work in Gosford at least part of the time. It found that the complainant could not comply with this requirement because of her carers’ responsibilities, and that this was indirectly discriminatory because a higher proportion of men or people without carers’ responsibilities would be able to comply with it. However, the Tribunal found that the requirement was reasonable in all the circumstances. The Tribunal accepted that it was more efficient and effective from a management point of view for the complainant to be based in Gosford, to meet and interact with staff, colleagues and supervisors. The Tribunal also considered that the respondent had made a serious attempt to accommodate the complainant’s carers’ responsibilities. Options canvassed included changes to core working time, changes to meeting times and discretion in regard to requirements to attend particular meetings. Eventually the complainant was directed to work at Gosford for five days per fortnight. In addition, the Tribunal found that the complainant had known since February 1999 that she may be required to move to Gosford, and had in fact known this when she applied for that particular job, even though she was not told directly that her position would be moving until June 2001. All employees whose positions were to be relocated were given other options such as consideration for relocation and assistance to find another position in the public or private sector. The Tribunal found that the complainant did not take up any of these options before being told specifically that her position would be moving, as she was hoping to convince management to keep her at the city office. The complainant’s case was therefore dismissed. The decision has been appealed. Gardiner v NSW Workcover Authority [2003] NSWADT 184 Carers’ responsibilities - changes to hours not unfair The Australian Industrial Relations Commission ruled that a small copying business did not dismiss a woman unfairly when it changed her working hours. The woman was initially employed to work from 9.30am to 4.30pm, to enable her to take her daughter to and from school. Later she was promoted to managing a branch store and her hours were changed to 8am to 5.30pm. After a day off sick she received a message to report to another, more distant store the following week. She said that when she spoke to the employer about the fact that she could not get there on time he was “uninterested and dismissive”. She went to the new store but arrived late and received a warning. After she went home feeling anxious and unwell, she was told to bring back her keys, and she understood that she had been fired. The employer disputed this, arguing that she had abandoned her employment. The Commission concluded that the company had initiated the termination, but found that as hours of work were crucial to such a small business, this was not harsh, unjust or unreasonable. However Commissioner Hingley said that the woman’s needs could have been handled more sympathetically. The company was ordered to pay the woman one week’s pay in lieu of notice. Philpott v Zip Copies Trust Pty Ltd c/o Zip Copies PR953788 Carers’ responsibilities - part-time work The Administrative Decisions Tribunal found that a transport company discriminated against a woman on the grounds of carers’ responsibilities by imposing a requirement that its employees work full time. The woman had asked to work three days per week for a period of time as she had been unable to find suitable child care but had arranged to take her daughter to her mother’s place 25 kilometres away. The company had refused on the basis that they needed the woman to work full-time as she was a manager, and they believed her proposal was unworkable. The woman subsequently resigned. The Tribunal found in the circumstances the requirement to work full-time was unreasonable. It found that the company had failed to properly consider the woman’s proposal and had responded to it in a “knee-jerk” way. The company was ordered to pay the woman $16,000. Reddy v International Cargo Express [2004] NSWADT 218 Carers' responsibilities - refusal to allow part-time return to work discriminatory The NSW Administrative Decisions Tribunal partially upheld a claim that the TravelSpirit Group Pty Ltd unlawfully discriminated against a new mother on the basis of her caring responsibilities. The company refused her request to return to work part-time following maternity leave. They offered her alternative jobs that were part-time, however they weren’t as well paid or as convenient. They also discriminated against her when they banned her from speaking Arabic at work. The Tribunal found that the company failed to give full and proper consideration to whether the travel consultant could perform her role part-time on the basis she proposed, or a variation on her proposal. The company also discriminated against the consultant on the basis of race when it directed her not to speak in Arabic at work, the Tribunal found. It ordered the employer to pay the consultant $5,000 in damages. Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 (15 December 2005) Disability discrimination Disability - anti-bullying HR policy upheld The Federal Court found that Goldman Sachs JB Were Services Pty Ltd breached a financial advisor’s employment contract when it failed to adhere to its own HR policies. The employee developed a depressive disorder and his employment was subsequently terminated by the company. His depression developed after a long dispute over the method of allocating clients to advisors. The Federal Court’s ruling is a clear indication to employer’s that HR policies are legally binding as parts of employment contracts. The company’s Working With Us (WWU) policy set out grievance handling procedures, the company’s goals in providing a healthy and safe working environment, strict policies against bullying and harassment of staff, and a code of conduct dealing with ‘integrity’. Justice Wilcox ruled that the provisions of the WWU were binding on employer and employee. Despite contrary arguments by the company, he said that Company managers and employees all considered the WWU binding. Mangers were expected to adhere to the policy when dealing with staff and employees could be disciplined for breaching it. The court found that the company breached the policy in three important ways. It failed to provide a healthy and safe workplace; it didn’t prevent the employee from being bullied and harassed; and it did not follow grievance procedures as set out in the policy. Justice Wilcox ordered damages of $515,000 for past and future loss of income and general damages for breach of contract. Unusually, the award contained a provision that if there wasn’t an appeal, then damages would be reduced by $50,000. Justice Wilcox reasoned that, while the company had a right to appeal, an appeal would delay the worker’s return to work and recovery; this would therefore justify the extra damages. Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 (23 June 2006) Disability discrimination - casual worker succeeds in disability claim The Victorian Civil and Administrative Tribunal (VCAT) found that a casual worker was discriminated against after his employer discovered he had previously lodged a Workcover claim. The company was ordered to pay $12,500 with VCAT finding the employer discriminated against the casual worker on the grounds of impairment after it had stopped offering work to him. The man had been working casually for the company when he went for an interview for a fulltime position. He was unsuccessful, then found his casual work petered out. He alleged that in the interview, he’d told the panel he had a preexisting injury. The Tribunal made no finding on that point. However it accepted evidence from an AMWU official that the HR manager had inadvertently told her that the man had been put off because he had a previous WorkCover claim. The Tribunal concluded that the substantial reason the Complainant’s name was removed from the list of casual employees was because of his previous WorkCover claim. Because of the discriminatory behaviour by the HR manager, VCAT ruled that PrixCar was vicariously liable and ordered $7,500 compensation for lost wages, and $5,000 for pain and suffering. Ronald Lester Dekretser and PrixCar Services Pty Ltd [2005]VCAT738 [22 April 2005] Disability discrimination – colour-blind man wins right to drive ambulance The Administrative Decisions Tribunal found that the NSW Ambulance Service contravened the NSW Anti-Discrimination Act by refusing to employ a man with a mild form of colour blindness. The man is a trainee nurse and has had a commercial driving licence since 1995. He previously spent some years driving in underground mines where he was required to follow complex light systems and perform other tasks involving colour reference and identification. The tribunal held that there is no evidence that people with protanopia (who can distinguish all colours except subtle differences between red and brown) are not safe drivers. It rejected the Service’s claim that the man was unable to perform the inherent requirements of the job due to his disability, and recommended that further tests be conducted in work-like circumstances to determine his suitability for employment. Browne v NSW Ambulance service [2004] NSWADT 192 revised 10 September 2004 Disability discrimination - colour blindness not a barrier The NSW Administrative Decisions Tribunal found that the Ambulance Service of NSW discriminated against a colourblind man who applied for employment as a trainee ambulance officer. Mr Clunes was required to undergo a series of steps in the process of successfully becoming a trainee officer. He was up to stage five which involved a health assessment. As part of the assessment he had to undergo some vision tests; he was assessed as failing the Service’s colour vision standard (he registered as red/green colourblind). The Service indicated it was reviewing its standard but, in the meantime, said that Mr Clunes had not been successful in obtaining a trainee position in the basis he could not perform one of the inherent requirements of the position. The Tribunal noted that the complaint of Browne v NSW Ambulance Service had been decided in 2004 and that it was similar to Mr Clunes’ case. In Browne, the Tribunal found unlawful discrimination by the Service and that the Service had not made out its claim that Mr Browne could not perform the inherent requirements of the job. In essence the Ambulance Service did not contest Mr Clunes case other than to deny it had subjected him to unlawful discrimination. It referred to the Browne case and indicated that it was in the process of developing a colour vision testing process to be used in assessing suitability for employment as an ambulance officer. The Tribunal noted that the Service was essentially asking it to delay making a finding on the merits of the complaint until it received a report on the new testing process. The Tribunal said it was unable to do so and that the appropriate move for the Service would have been to apply for an exemption from the ADA to cover it in the meantime. It had not done so. The Tribunal ordered the Service to reconsider Mr Clunes’ application without reference to the standard for colour vision which it had previously applied to him and offer him employment, and also ordered it to pay $5000 compensation for the amount of time and effort he had spent in pursuing his goal of becoming an ambulance officer. The Service is appealing against the decision. Clunes v Ambulance Service of NSW [2006] NSWADT 103 Disability discrimination - demotion due to depression discriminatory The Federal Magistrates Court ruled that the Navy discriminated against a former officer who was demoted after she took sick leave for depression. Federal Magistrate Murray McInnis found that the Navy discriminated against the female Lieutentant on the grounds of disability in breach of the federal Disability Discrimination Act. Federal Magistrate McInnis rejected additional allegations of sex discrimination involving the officer’s treatment at HMAS Stirling naval base in Western Australia in 2000. He said that these allegations were ‘vague’ and ‘lacking in particulars’. However, he said the Navy was wrong to transfer the officer without consultation from her position to what she described as a ‘dog’s body’ job in the public affairs office. While her rate of pay was unchanged, the transfer was effectively a demotion and occurred because she took sick leave for around two weeks as treatment for depression. The Navy should have ensured the commanding officer knew of her medical condition and additional staff could have been used to fill in during the officer’s rehabilitation, Federal Magistrate McInnis said. He rejected the Navy’s argument that it transferred the officer ‘for operational reasons’. ‘The transfer . . . would not have occurred in circumstances where an officer was not disabled’, he said. The Navy was ordered to pay $25,000 in damages. Federal Magistrate McInnis awarded the damages for hurt, upset and humiliation suffered after the effective demotion, which led to the former officer’s resignation from the Navy. In awarding what he acknowledged as a significant award of damages Magistrate McInnis noted ‘it is appropriate in these circumstances where it would seem that the policy of the respondent has operated in a manner which effectively permitted the unlawful discrimination to occur’. Wiggins v Department of Defence-Navy [2006] FMCA 800 (9 June, 2006) Disability discrimination - depression, $83k award after indirect bias The Victorian Civil and Administrative Tribunal found that a woman was indirectly discriminated against by a State public agency when it set her unreasonable performance standards. The Vic Institute of Dryland Agriculture argued unsuccessfully that Julie Deckert’s attitude had caused her to take so much time off work. If she had ‘acted reasonably and accepted there was no campaign of intimidation’, her issues could have been dealt with constructively, the Institute argued. VCAT Deputy President Cate McKenzie disagreed, saying the Institute’s actions in setting the standards had triggered Deckert’s depression, and the medical evidence was she had been unable to work as a result. Workplace conflict had been a minor contributing issue. Deputy President Cate McKenzie awarded the woman $83,368.83; $47,606.96 was for lost wages while she was off work suffering from depression and $20,000 for stress, depression, anxiety and humiliation. DP McKenzie held each party must pay its own costs. Deckert v State of Victoria – Dept of Primary Industry – Victorian Institute of Dryland Agriculture [2006], VCAT 229, 3/3/06) Disability discrimination – indirect disability discrimination in employment A disabled customer service officer won a case of indirect disability discrimination after she was forced out of her position because she was not allowed to sit down while working. The respondent had introduced a new retail concept to their Manly store, where the complainant had worked for 11 years. As part of the new working environment, workers were not permitted to be seated while serving customers or performing retail counter duties. Previously, stools had been provided for front line customer service officers to use when needed. The complainant, who had osteoarthritis, heel spurs and varicose veins, was refused permission to sit, even intermittently, while serving at the retail counter. The respondent then redeployed her to the corporation’s head office in Strawberry Hills, and sought to appoint her to an administrative position, rather than a retail position, at another location in Sydney. After failing to provide her with a position close to the Sydney’s northern beaches where she lived, the respondent finally placed the complainant on extended sick leave. The court held that the requirement to stand at the counter while working was unreasonable, and that the respondent suffered indirect disability discrimination in contravention of s 15 of the Disability Discrimination Act 1992 (Cth). The court found there was an unreasonable belief by a manager that the respondent was ‘not the kind of person appropriate to be any longer serving on a post shop counter of Australia Post’. The court ordered the respondent to pay the complainant’s costs, estimated to be over $100,000.00. The court also ordered that the matter be relisted to assess compensation, including damages and lost actual and potential earnings. Daghlian v Australian Postal Authority, Federal Court of Australia, 23 July 2003 Disability discrimination - inherent requirements still a defence if complainant not informed An appeal panel of the Administrative Decisions Tribunal dismissed an appeal against a Tribunal decision which found that the NSW Police discriminated against a man on the ground of disability when it refused to offer him employment. The man has some loss of vision in one eye and NSW Police argued that this meant he would be unable to judge distances accurately and therefore he was unable to meet the inherent requirements of the job. The Appeal panel found that while the Tribunal at first instance had made an error of law, the Tribunal’s subsequent reasoning and findings made it clear its decision would have been the same even if it had not made the error. The error the Appeal panel said the Tribunal had made was in interpreting comments by the High Court in X v the Commonwealth (1999) 200 CLR 177 as meaning that in order to later rely on the defence, an employer must have identified the inherent requirements of a position prior to rejecting an application for employment. The Appeal panel went on to find that the error was not crucial to the Tribunal’s decision because the Tribunal ultimately found the inherent requirements defence was not made out, and it dismissed the appeal. It also rejected an appeal against the $10,000 awarded for non-economic loss, finding that there was no authority for NSW Police’s submission that the amount was well outside the range previously awarded by the Tribunal for non-economic loss. Commissioner of Police v Zraika [2005] NSWADTAP 1 Disability discrimination - lifting inherent requirement of store job A storeworker lost a case of unlawful termination after he was dismissed because he had a back injury and could no longer lift up to 20kg, or perform tasks involving repetitive bending or lifting. A person with a disability must be able to perform the “inherent requirements” of the job in order to be considered for or to remain in that job. If they cannot perform these requirements, regard must be given to whether they could carry out the requirements with some assistance. The Federal Court ruled that IGA Distribution was justified in dismissing the worker as lifting heavy items was an essential part of his job at the distribution centre. This involved assembling orders, packing, filling and stretch wrapping supermarket items, and working in the general merchandise area. The court ruled that inherent requirements should be judged on the original position performed by the employee and not any modified work performed during rehabilitation. Cucanic v IGA Distribution (Vic) Pty Ltd [2004] FCA 1226 (20 September 2004) Disability discrimination - ‘medically retired’ prison officer reinstated The Queensland Anti-Discrimination Tribunal found that the Queensland Department of Corrective Services discriminated against a 56-year-old prison officer by pushing him towards retirement instead of allowing him to complete a rehabilitation program. The officer was ‘treated less favourably than other (officers) without the impairments,’ in breach of s10(1) of the Queensland Anti-Discrimination Act. The officer, who had injuries and osteoarthritis in both knees, was involved in a rehabilitation and return-to-work program when the department required him to undergo a medical examination. The results of the examination were used to retire him on health grounds in 2004. Tribunal Member Gerard Mullins was ‘not satisfied to the requisite standard that the complainant is unable to perform the genuine occupational requirements of his position. Neither do I consider that the respondent has discharged its onus of proving that the complainant is an unacceptable risk of personal injury.’ ‘The acting general manager had certified that the conduct of the enterprise would not be adversely affected by permitting him to complete that program. There was no justifiable reason at the time, based on workplace health and safety considerations, to not permit the complainant to complete his return to work program,‘’ Member Mullins said. The Department was ordered to reinstate the officer and pay $44,852 in compensation. Toganivalu v Brown & Department of Corrective Services [2006] QADT 13 (18 April 2006) Disability discrimination – OH&S Mr Higginson was employed as a maintenance fitter at the Wagga Wagga Abattoir, operated by the respondent. Mr Higginson had an operation on his leg in July 1998, and his doctor advised that he could return to work in August 1998. However, Mr Higginson's employer held the view that he was unable to carry out the work safely, and they had no other position to offer him, so they did not allow him return to work until 17 May 1999. Mr Higginson complained to the Anti-Discrimination Board that he was being discriminated against on the basis of disability. The Tribunal found that the respondent's refusal to allow Mr Higginson to return to work constituted less favourable treatment and that this amounted to both a discriminatory condition of employment and a detriment. On appeal, Cargill argued that the Tribunal had made two errors of law. The Appeal Panel did not accept either of the arguments, and found there were no errors of law by the Tribunal. The second argument raised by the appellant raises interesting issues regarding the interrelationship between anti-discrimination legislation and the Occupation Health and Safety Act (OH&S Act). Cargill alleged that the OH&S Act required the employer to discriminate and therefore a defence existed under s.54 of the Anti-Discrimination Act. (This states that an action is not unlawful if it was necessary in order to comply with any other Act.) The Panel examined whether s.15 of the OH&S Act required an employer to refuse work to an employee if that person was more susceptible to injury than other employees or potential employees. Having considered relevant industrial law cases, as well as a range of anti-discrimination cases, the Panel concluded that there will be occasions where it will be lawful for an employer to refuse an employee permission to work in a particular role, or to work at all, because of OH&S legislation. The Panel listed a number of factors that needed to be considered when determining the lawfulness or otherwise of these decisions. It then applied these factors to the facts in this case and concluded the following: that Mr Higginson was fit for work, despite the restrictions placed upon him by his own surgeon; that he had not slipped over in 20 years, and there was no more likelihood of him slipping over than any other employee; and while Mr Higginson may suffer a more severe injury than an employee without a similar disability if he did slip, the likely nature or extent of such an injury was unknown. The Panel agreed with the Tribunal's reasoning and conclusion and no error of law was detected. The appeal was therefore dismissed. Equal Time is the quarterly newsletter of the Anti-Discrimination Board of New South Wales. Cargill Australia v Higginson - Appeal Decision, Administrative Decisions Tribunal, Date of decision: 7 June 2002 Disability - sickle cell trait The Federal Magistrates Court upheld a complaint of disability discrimination lodged against the NSW Police by an employee who carries sickle cell trait, a blood condition common in the black African population. The employee is of both Aboriginal and African origin. The man was accepted as fit for duties when he joined the police force, although his condition was known at that stage. After his brother died from an assault and the autopsy linked that death to complications arising from sickle cell trait, the man was placed on informal restricted duties. A specialist said he was fit to undertake full duties, but the Police Service also required an assessment from the man’s GP. The GP, who knew less about the condition, said that precautions were called for, and as a result the man worked on restricted duties for several years. Following his complaint to the Human Rights and Equal Opportunity Commission, another specialist confirmed that the restrictions were unnecessary. The GP wrote a new certificate for the man and the restrictions were lifted. The court found that the Police Service had discriminated against the man on the basis of disability because it had placed him on restricted duties when it knew this was unnecessary because of the specialist’s report, and required him to obtain a further certificate. However a claim of race discrimination was dismissed. The Police Service was ordered to pay the man $10,000 in damages, plus lost overtime and allowances, plus interest. Trindall v NSW Commissioner for Police [2005] FMCA 2 Disability discrimination – redundancy The NSW Administrative Decisions Tribunal found that a NSW TAFE teacher with Hepatitis C was discriminated against when offered a redundancy payout. The teacher was awarded $19,575 in compensation. The Tribunal ruled that the teacher had received less favourable treatment than fellow workers partly ‘because of his fitness for work which, in turn, was inextricably linked to his disability’. The teacher had Hepatitis C, advanced liver disease and widespread arthritis. The Tribunal concluded that he was not offered the same redeployment and transfer opportunities as his colleagues who had also been made redundant. The Tribunal concluded his disability influenced TAFE management’s decision not to offer him redundancy on similar favourable terms. The written offer of redundancy did not include the retraining and transfer opportunities offered to other teachers. Management had also failed to make an ‘exhaustive survey of possible options’ for his re-employment. The full bench ordered TAFE to pay the teacher $16,075 in damages for economic loss (assessed at 30% of lost income based on an estimated 30% chance of redeployment denied) plus $3,500 in damages for non-economic loss (claimed for depression and unfair treatment). Nesci v TAFE Commission of NSW (No 2) [2005] NSWADT 183 (8 August 2005) Disability discrimination - susceptibility to panic does not affect compensation The Queensland Anti-Discrimination Tribunal ruled that a woman’s long-standing susceptibility to panic attacks was not a reason to reduce the amount of compensation she was entitled to after being sexually harassed. The woman told the Tribunal that the general manager of the Palm Beach Surf Lifesaving Supporters Club harassed her by asking her to have sex and kissing the top of her head. He also grabbed her and kissed her on the lips, after which she had a panic attack. Tribunal member Peter Roney applied the “eggshell skull” rule, which says that a person must take their victim as they find them. Therefore the fact that the complainant had an existing susceptibility to anxiety did not excuse the manager or make him less responsible for her psychological reaction. The woman was awarded $41,000 damages, including $24,700 in lost wages and $15,000 in general compensation. Lang v Nutt [2004] QADT 37 Disability discrimination – visual acuity in employment Mr Zraika has a visual disability — loss of visual acuity or sharpness of vision- which is not correctable by wearing glasses. In September 2002 he applied for employment with NSW Police. His own doctor certified that he was capable of performing the activities of a recruit and the duties required of an operational police officer. The application also required he undergo a visual acuity test. On the basis of his score in that test his application was rejected because he did not meet the department’s medical standards for entry into the service. Mr Zraika succeeded in his claim of disability discrimination and was awarded $10,000 compensation. By agreement between the parties, the case turned on section 49D(4) of the Anti-Discrimination Act ie “inherent requirements” and “unjustifiable hardship”. In this situation the onus is on the Respondent to show that the exception applies — section 109 of the ADA (Proof of exceptions). The Tribunal looked to previous cases when considering that defence and said the respondent has to: determine the inherent requirements of the position in question; determine whether the applicant with a disability is able to perform those inherent requirements without assistance; and if the second inquiry (re assistance) results in a finding adverse to the person with a disability, the employer must determine whether the applicant may be able to carry out the inherent requirements with a level of assistance which does not impose an unjustifiable hardship on the employer. While it is the employer’s obligation to determine the inherent requirements of a particular position, the employer’s own statement is not conclusive. It must be able to satisfy the Tribunal that it has made those determinations (ie that the applicant could not perform the inherent requirements without assistance and that he could not perform the inherent requirements without a level of assistance that would impose an unjustifiable hardship on the Respondent). The respondent failed in defending its action because it could not satisfy the Tribunal on either of those matters —inherent requirements and unjustifiable hardship. It is not sufficient for a respondent to simply assert as an inherent requirement that the person must be able to perform the duties safely — what those inherent requirements are must first be determined, then an assessment made about whether the person with the disability is capable of performing them safely. The only evidence about the Respondent’s determination of the inherent requirements were entries on the medical professional suitability application — these were too broad and too general to be an adequate description of the inherent requirements of an operational police officer; Basically, the Respondent had not met its threshold obligation of proving he had appropriately identified the inherent requirements of the position of an operational police officer at the time the complainant’s application was rejected. Even if it had, the Tribunal identified three reasons why the Respondent did not satisfy the Tribunal that its conduct fell within the defence: the determination must be made taking into account the person’s past training, qualifications and experience relevant to the particular employment. There was no evidence to suggest this had been done despite evidence on the Complainant’s application form that he had previously performed jobs that also required a high level of visual acuity. the use of one particular visual test as a ‘standard’ for applicants to meet is not sufficient. The Respondent must determine the degree of risk to others caused by the Complainant’s visual impairment and the consequences of any such risk being realised; the Respondent has not satisfied his burden of proof about the second limb of the inherent requirements test ie “unjustifiable hardship”. Where an employer wishes to rely on the inherent requirements defence it must direct her or his mind to that question at the time the job application from a person with a disability is rejected; *Orders* Compensation and an order that the Respondent to take all necessary steps to determine the Complainant’s application without reference to the existing standard for visual acuity. Zraika V Commissioner of Police, New South Wales, Disability Discrimination, 7 April 2004 [2004] NSWADT 67 Disability discrimination - worker with psychiatric disability reinstated The AIRC ordered a dairy food company in Victoria to reinstate a worker it dismissed following his first episode of schizophrenia. Commissioner Mansfield found that because of the machine operator’s mental illness at the time, he was not in control of the actions that led to his dismissal and therefore there was no valid reason for terminating his employment. Medical evidence showed he was now fit to return to work. Murray Goulburn Cooperative (MGC) fired the man after he left work during his rostered shift without notifying his supervisor. Eight days later he was found in the workplace at 3am with a cigarette and beer both of which are banned at the factory. He had also left a can of beer in a fridge in the butter room and gone into a hygienic area of the factory without regulation clothing. Following that incident he was involved in a robbery of an empty cash bag and two packets of cigarettes from a supermarket. As a result he received a community-based order and his family sought psychiatric help. He was diagnosed with schizophrenia and received treatment. He was advised by MGC in July that he was stood-down without pay. Three months later he advised MCG that his health had improved and he wanted to return to work. However, following a meeting with senior management he was informed that he was dismissed. MGC was aware he’d been diagnosed with a mental condition and had received treatment. MGC maintained that consumer confidence could be affected by any breach of its hygiene standards. It believed it had to impose a high level of responsibility on employees for any failure to observe its standards. Commissioner Mansfield ruled that due to the man’s mental illness at the time, he was not in control of the actions that led to his dismissal, and on that basis his sacking was harsh, unjust and unreasonable. He concluded the medical evidence clearly indicated the worker’s ability to return to his former job, and that there were no special requirements that needed to be considered by his employer. MGC was ordered to pay the man’s lost wages from December, which was when he was out of hospital and had finished his community service. It was left open whether the reinstatement be to his former position, or to an acceptable alternative position. Steven Berry v Murray Goulburn Co-operative Limited. PR957500 (21 April 2005) Dress codes - nose stud ban reasonable A full bench of the Australian Industrial Relations Commission (AIRC) found that Woolworths was entitled to ban a long-standing employee from wearing a nose stud at work, despite failing to enforce its policy for a decade. The decision overturned a ruling by Deputy President Ian Watson last year that Woolworth’s subsidiary Safeway should allow the employee to wear her diamante nose stud at work, except when handling or preparing fresh food or taking part in substantial customer contact. He had taken into account the company’s ‘belated’ application of the policy – Safeway had not objected to the nose stud when it hired the woman in 1990 and had failed to apply the 1996 policy for nine years. The company subsequently sought to enforce its uniform policy which banned body jewellery apart from two earings. The full bench stated that the company dress policy definitely prohibited the employee’s nose stud. The question under consideration was whether it was reasonable for Woolworths to require the employee to remove the stud. The bench overturned Deputy President Watson’s decision, saying it wasn’t unreasonable for an employer to belatedly apply its policy, and that failing to enforce a policy didn’t render it unenforceable. ‘Looked at from a general perspective, it cannot be that an employer who condones or permits a breach of the policy by a particular employee loses the right to apply the policy to that employee for all time as a consequence‘’. ‘There may be situations in which it would be unreasonable or unconscionable for an employer to withdraw a representation that what would otherwise be a breach of policy was not, but it would need to be shown that the employee would suffer some financial or other detriment‘’, the bench said. The bench criticised Woolworths saying its conduct was ‘clearly unsatisfactory‘’ and that inconsistently enforcing policies can cause uncertainty, disharmony and ill-feeling among employees. B. Miller v Woolworths Limited t/as Safeway. PR971351 (1 May 2006) Emails Emails in the workplace Twenty-four staff at this Centrelink were investigated after a report alleging breach of Centrelink’s email policy. Of the 24, 2 resigned and 2 were dismissed. The others were subject to disciplinary action. The applicant was one of those dismissed and the felt hard done by. He argued that his dismissal was unfair. He hadn’t, he said, read the relevant policy document because he was too busy. He had, at one time, asked his manager (one of those who resigned) whether breaching the email policy was a disciplinary matter. He’d been told that it was a performance issue only. The applicant complained that his dismissal was unfair. No-one was offended, he said, the others hadn’t been dismissed and he didn’t believe he’d done anything wrong. The Australian Industrial Relations Commission was not impressed. For one thing, the applicant had been trained as an Harassment Contact Officer, and should have had some appreciation of the issues. The Commission said that this was a position of responsibility. The Commission thought that I the applicant hadn’t spent so much time sending and receiving pornographic emails, he might have had more time to read the APS Code of Conduct. The investigation had been fairly conducted and the applicant had had a fair chance to put his case. The evidence showed, however, that he had sent and received more, and more offensive emails than anyone else! The Commission upheld the dismissal. Williams V Centrelink, Australian Industrial Relations Commission, February 2004 Family responsibilities Family responsibilities - Customs Service meets obligations on family responsibilities The Australian Industrial Relations Commission found that the Australian Customs Service met its obligations to a man’s family responsibilities and has dismissed his case of unfair dismissal against them. The Customs Service generally requires its officers to move to new locations every two years. The officer was due for relocation from Cairns to Brisbane but asked to stay in Cairns to be near his children. The Service offered him a number of options including staying for an additional year (which he did), staying in Cairns for a further period at a lower level and moving to Brisbane and being given “reunion” airfares and help to find another job back in Cairns. When he refused these offers and refused to move to Brisbane, he was dismissed. The court ruled Customs’ offers to the man were “fair and reasonable” in view of their operational requirements. It held that he was aware of the Customs rotation requirement and his refusal of Customs’ offers was unreasonable. A S Webb v Australian Customs Service PR 948530 (28 June 2003) Family responsibilities – leave entitlements A recent case heard in the Federal Magistrates Court found that an employer discriminated against a female employee with carer’s responsibilities. The employee, a single mother with a six-year-old child, was employed as an intelligence analyst for the National Crime Authority, now known as the Australian Crime Commission, on a contract basis between 1999 and 2000. Upon joining the NCA, the complainant was able to transfer her accrued leave entitlements from her previous government employer, which amounted to between six and seven hundred hours. During the course of her contract with the respondent, the complainant took some time off for personal leave, including carer’s leave and sick leave, for which she provided medical certificates. In early July 2000, she attended a meeting with a team manager. At the meeting she was told that she was not ‘fulfilling the job on a full-time basis’, and advised that if her leave from work continued, her contract would be terminated. She told the manager that the leave she was taking was already accrued and she was entitled to it. The manager expressed surprise that the leave was owing to her. Following the meeting, the complainant suffered stress and anxiety, and consulted her doctor who gave her a medical certificate for further leave. A second meeting was held late in July between the complainant and the manager. During the meeting she was advised that her employment contract would not be continued beyond September 2000, despite the ongoing nature of the work of her unit. The manager also told the complainant that if he had known she was a sole parent, he ‘would never have hired her’. Following the meeting, the complainant alleged the manager asked her if she could ‘guarantee 100% attendance for the remainder of her contract’. She advised the manager that she was unable to provide a guarantee that her child would not be ill, and confirmed that she would honour her employment contract in good faith. A series of meetings then took place between various managers and the complainant. During these meetings, she was again asked if she intended to be at work every day. In the last of the meetings, a regional manager commented, ‘I would never have hired you if I had known that you would have a sick child and take so much time off’. The complainant was distressed and sick as a result of this comment, and on the following day, formally resigned her position. Supporting evidence was presented from the complainant’s co-workers, including a colleague who was also a sole carer. The colleague was also warned that her contract would not be renewed if she took further carer’s leave. The court found that the respondent had discriminated against the complainant on the ground of family responsibilities. The court found that the complainant had not taken any leave to which she was not entitled by her contract, and that under cross-examination, the manager concerned conceded that the leave the complainant took was not excessive. The court ordered damages of $25,000 for hurt and humiliation, and damages for loss of wages for approximately $16,000. The court also indicated that it would be appropriate for the respondent to make a formal apology. Evans v National Crime Authority, Federal Magistrates Court of Australia, date of decision: 5 September 2003 Family responsibilities - unlawful dismissal claim upheld The Australian Industrial Relations Commission ordered an employer who made a worker redundant because of her family responsibilities to pay the employee $5,664 in compensation. After returning from maternity leave, the employee informed Powerlab that her mother had been diagnosed with terminal cancer. She returned to work but, due to a deterioration in her mother’s health, had to take unpaid leave. Two months later the employee requested part-time work but did not get a response for another two months when the request was declined. Several months later she was made redundant. The employer of seven argued that it wanted to cut administration staff numbers and to employ more tertiary-educated accounts workers. The Commission found the employee was selected for redundancy over other employees because of her family responsibilities. The employer’s argument that its small size reduced its ability to comply with procedural fairness requirements was rejected. Commisioner Hingley said the employer should have met with the employee to discuss the impact of the proposed restructure on her future. Katia Georgiadis v Powerlab Pty Ltd. PR956774 (7 April 2005) Grievance handling Grievance handling It is becoming increasingly obvious that employers need to ensure that their grievance handling processes are impeccably fair. Ms Taylor alleged that she was sexually harassed by her superiors on board the HMAS Stirling. When her complaint was investigated, however, she was found guilty of “collusive conduct” with two colleagues to prevent their superior’s promotion. An internal investigation declared that she was not a credible witness and recommended that she be charged with “prejudicial behaviour” and given a formal, written warning. How then, did she manage to win a stress claim? After the investigation was completed, Ms Taylor consulted a navy medical officer and a civilian GP for depression. She lodged a claim for anxiety, alleging that the stress of the investigation had contributed to her condition. She was discharged, but Comcare doctors argued that her depression was caused by personal factors unrelated to the investigation. The AAT disagreed, and decided that the she had been incapacitated by the investigation. She was awarded worker’s compensation. Taylor v Comcare/Department of defence, WA Administrative Appeals Tribunal, AAT, W2000/429, Date: June, 2003 Homosexual Homosexual vilification – apartment block Mr Burns lived in a Department of Housing block, in a unit directly below Mr Dye's unit. He alleged that Mr Dye subjected him to homophobic harassment between August 1999 and October 1999. The complainant alleged breaches of ss.49ZT (homosexual vilification) and 49ZTA (the offence of serious homosexual vilification). The President of the ADB referred the complaint of serious homosexual vilification to the Director of Public Prosecutions, who did not consent to the prosecution. The case was decided under s.49ZT. The respondent conceded that he had used the terms 'faggot' and 'poofter', and that he may have used the term 'f-ing c-t'. He conceded he used the term 'f-ing c-sucking Burns', but denied using this term to his face. The Tribunal found that the respondent had used abusive names in connection with the complainant on at least two occasions. It determined that the abuse occurred in a hallway open to residents and guests of the complex and was capable of being overheard, and was thus a form of communication to the public. The Tribunal also concluded that it would have been apparent that Mr Burns was the target of Mr Dye's abuse. However, it was not satisfied that the abuse could have incited hatred, serious contempt or severe ridicule of the complainant, as Mr Dye was visibly drunk at the time of the abuse and 'from outward appearances would not appear [to the public] to enjoy any position of respect or influence'. This part of the complaint was therefore dismissed. Tribunal member Mr Silva, in his minority decision, disagreed that the respondent's behaviour could not have influenced third parties. He held that the abuse could incite another party to 'severe ridicule'. Mr Silva did not accept that the respondent's relatively low standing within the community would prevent this incitement, and argued that people respond to abuse immediately. The complainant also alleged that during the long weekend of October 1999 the respondent smashed bottles against his property, tampered with his door lock and drew a large penis on his door along with the words 'fag lives here, faggots should die'. The Tribunal did not decide whether the first two allegations were true, but was satisfied on balance that the respondent had drawn the penis with the accompanying words. It observed that in the absence of an accompanying verbal or written communication, bottle smashing and lock tampering could not amount to vilification as there was not the required link between the actions and possible third party responses, and the complainant's sexuality. The Tribunal considered the graffiti a communication to the public, as it was on display in the public hallway. The Tribunal was satisfied that this act was vilification, as the message was not only an indication of hatred but was implicitly addressed to passers by, and also implied that killing homosexuals was a worthwhile endeavour. It was self-evident that the complainant's sexuality was the cause of the respondent's conduct, and the Tribunal found that the conduct could indeed have incited others to hate, have serious contempt for or severely ridicule the complainant on the basis of his homosexuality. The minority Tribunal member considered that the respondent had committed all three acts alleged: bottle smashing, lock tampering and the offensive graffiti, and that neighbours could well have concluded that these acts were connected with the complainant being gay. Considering all these acts together, he found that they amounted to vilification in that they could have incited others to severe ridicule. The complainant also alleged a series of incidents involving the respondent depositing faeces and urine on the complainant's doorstep. The Tribunal was not satisfied that (even if these acts were public, which was not clear) they could be capable of inciting the necessary responses. Without any written or verbal communications connected to the acts, there was not the necessary causal link between the acts and any feelings they might provoke on the one hand and the complainant's sexuality on the other. This part of the complaint was dismissed. Again, Mr Silva disagreed and concluded that the neighbours would have been aware of the ongoing abuse and could have concluded that the depositing of faeces on the complainant's doorstep was a comment about Mr Dye's homosexuality. The complainant sought damages for pain and suffering. The Tribunal concluded that in view of the fact that most of the complaint had been dismissed (leaving only the short-lived graffiti incident), and that the complainant had a pre-existing condition of depression, the payment for pain and suffering should be at the low end of the scale. Although the respondent's behaviour had exacerbated the complainant's condition, only part of that behaviour was unlawful. The complainant was awarded $1,000.00. The Tribunal specifically rejected the notion that the respondent's capacity to pay should be considered as relevant. It also ordered the respondent to provide an apology in specified terms. Mr Silva considered that all the allegations had been proven and that the acts should be considered together. Mr Silva determined that the complainant should have been awarded $15,000.00. Burns v Dye [2002] NSWADT 32, Administrative Decisions Tribunal, date of decision: 12 March 2002 Homosexual vilification - internet The Administrative Decisions Tribunal upheld a complaint of homosexual vilification regarding material posted on a personal website and on various internet chat groups. Mr Collier, a gay man and long term gay activist, came across material that had been posted by Mr Sunol on his own website and on several other websites. He made a complaint to the ADB about eight statements, published in four items on the various sites alleging that they vilified homosexual people in breach of section 49ZT of the Anti-Discrimination Act. Mr Sunol admitted to publishing some of the material but also claimed that his site had been hacked into and material placed on it to discredit him. He was not able to produce any evidence to prove that this was the case. The Tribunal concluded that Mr Sunol was responsible for publishing much of the material. To decide whether the material unlawfully vilified homosexual people the complaint had to satisfy four criteria. The material had to be: 1. a public act; 2. which incites; 3. hatred towards, serious contempt for or severe ridicule of a person or group of persons; 4. on the ground of the homosexuality of the persons or members of that group. The ADT then must consider whether any of the exceptions allowed under section 49ZT(2) apply. The onus of showing an exception applies is on the respondent. The Tribunal found that the publication of the material on publicly accessible websites was a ‘public act’ that occurred within the Tribunal’s jurisdiction. They also found there was incitement to hatred or serious contempt in seven of the eight statements complained of. The statements did not merely convey Mr Sunol’s fellings of hatred and contempt but also contained strong epithets, derogatory labels and serious allegations as to why other people should develop such feelings. Other comments urged readers to engage in conduct that is adverse to homosexuals. To fit the criteria of section 49ZT the incitement must be ‘on the grounds of’ the homosexuality of the person or group. The Tribunal looked at the eight statements and concluded that in five of them homosexuality was put forward as the reason why they should be the subject of hatred and/or serious contempt. The Tribunal rejected Mr Sunol’s arguments that an exception under the Act should apply saying that four of the statements were nothing more than sweeping generalisations of a highly insulting and offensive nature. One statement regarding the ‘Gay Lobby’ may have been defensible and therefore within the exception but for the fact that the language used was extreme and hostile. In a subsequent judgment, the Tribunal ordered Mr Sunol to pay Mr Collier’s costs. It also required Mr Sunol to remove from all websites controlled by him any material concerning homosexual men, lesbians, homosexuality or the gay lobby and to refrain from publishing material on any of these topics on any other website. Mr Sunol was ordered to post a specific apology on various websites including all sites controlled by him. Mr Sunol is appealing against the original decision. Collier v Sunol [2005] NSWADT 261 Collier v Sunol [2006] NSWADT 88 Marital status Marital status – single mother in employment Ms Flekac started work at Australian Cable and Telephony Pty Ltd (AC&T) as a casual in March 2002. Ms Flekac is a single mother with an 11 year old child. She signed a contract on starting with AC&T that provided that her hours were subject to change, on reasonable notice, to meet business requirements. Initially Ms Flekac worked an eight hour shift which ended late in the evening; later her shift changed to normal business hours ie 8.30 to 5, then from 9–4. Over a period of three weeks in August/September 2002 Ms Flekac had some time off due to influenza - seven out of 15 working days; medical certificates were provided for all her absences. With effect from 11 September 2002 (and while she was on sick leave) Ms Flekac’s rostered shift was changed from 9am to 4pm to 4 pm to 9pm. On her return to work on 16 September 2002 she met with her supervisors and explained that the change in her shifts meant it was difficult for her to arrange childcare. During that meeting a serious performance issue was raised that had become apparent during the employee’s absence on sick leave. Ms Flekac was informed that, pending the outcome of the investigation into the matter and providing she was still employed, her supervisor would attempt to change her shifts to accommodate her childcare needs. After that meeting Ms Flekac’s employment was suspended pending the investigation. On 9 October 2002 her employment was terminated. Ms Flekac alleged that AC&T directly and indirectly discriminated against her because of her parental and/or marital status and because of her impairment (influenza) by changing her shifts and then by suspending and subsequently terminating her employment. Ms Flekac also alleged less favourable treatment in the way in which her work was supervised. *Findings* The Victorian Civil and Administrative Tribunal (VCAT) found for Ms Flekac on one basis only, that of impairment by changing her rostered shifts. In evidence AC&T said the reasons for the shift change were Ms Flekac’s illness and the fact that on the 9–4 shift there was only one employee for the first part of the shift which meant it was difficult on short notice to arrange someone to cover it. There were more employees on the later shift which meant it was easier to cover in case of illness. There was also evidence that the person who made up the rosters accommodated the needs of those who gave her notice that they would be unable to work their particular shifts, for example, because of examinations or other personal circumstances. The VCAT found that a substantial reason for the treatment of Ms Flekac was her periods of (legitimate) absence due to illness and assumptions made by AC&T that those absences would continue. It found that AC&T treated her less favourably than it would have treated other employees absent for legitimate reasons, other than illness, being reasons accepted by the company. The change was made with immediate effect and the employee had no chance to discuss the change with her employer. Her contract required that reasonable notice be given but there was none. In regard to her claim of discrimination on the basis of her parental status or status as a carer, the VCAT found no evidence the rosters were changed because of Ms Flekac’s status as a single mother hence there was no direct discrimination. It also found the requirement to work the new roster was not indirect discrimination because Ms Flekac was not able to show that it would have been impossible for her to make alternative childcare arrangements. It also found that while many aspects of the process whereby Ms Flekac’s employment was terminated were unsatisfactory, the reasons for the termination of her employment were not to do with either her impairment, her parental (carer’s) status or her marital status. Accordingly, Ms Flekac was successful on only one ground — her claim of direct discrimination on the basis of her impairment by changing her rostered shift. She was unable to adduce evidence of any financial or emotional loss due to the change in her roster but did seek an apology from the company. This was the order made by VCAT -that the company apologise forthe inconvenience caused to Ms Flekac by having to alter her childcare arrangements at short notice in order to attend for work at the new time on 16 September 2002. *Notes* The Victorian Equal Opportunity Act 1995 sets out a number of attributes on the basis of which discrimination is prohibited. While not identical to those of the Anti Discrimination Act 1977 (NSW) they are more or less equivalent to discrimination on the ground of marital status (Part 4), disability (Part 4A) and responsibilities as a carer (Part 4B). Flekac v Australian Cable and Telephony Pty Ltd, Victorian Civil and Administrative Tribunal, 19 December 2003 Maternity leave - denial of full time work, Queensland sex discrimination claim upheld The Queensland Anti-Discrimination Tribunal found that an employer that refused an accountant’s request to return to full time work after maternity leave denied her not only a full time income but also significant bonus payments. The accountant had worked as a casual during her maternity leave. When she sought to return to work on a full-time basis, the employer told the employee she could only return to work for a few half days a week for six months, then full-time for six months before reverting to casual work. The employer had, during the employee’s maternity leave, engaged another accountant for at least 20 hours a week, and then ‘decided it was not in the best interests of the business to allow [the accountant] to return to full time employment immediately after Christmas 2003’. Tribunal member Peter Roney found the principal had been influenced by concerns that the accountant might have another baby and cause disruption to the business. Mr Roney ordered the Bundaberg accounting firm to pay the accountant $21,000 in damages, including $5,000 for hurt and humiliation and $5,160 for bonuses she missed out on. He said he would be inclined to order costs to the employee, but asked the parties to try to reach agreement. Pressler v Stewart [2005] QADT 33 (24 November 2005) Maternity Leave – Nike discriminates against parent The Victorian Civil and Administrative Tribunal (VCAT) has found that Nike discriminated against a former employee on her return from maternity leave. When Ms King returned to work after maternity leave she found her position had been divided into two positions. She was given the more junior position, despite the senior role including most of her previous responsibilities. She argued that she had been discriminated against because of her carers’ responsibilities. The sales manager of the company argued that the senior role was given to the better candidate. The Tribunal did not believe this because: it being the job she had held it would not have been sensible to give it to someone else; the sales manager had expressed concern about how women with children managed their time; he had told Ms King to spend as much time as possible with the baby; he had sent and email to other employees after Ms King’s return saying ‘Please welcome Sally back to the office and if she s p e l l s e v e r y t h n g o u t when talking to you please be patient’. The Tribunal was satisfied that Ms King was not appointed because of the sales manager’s beliefs about the effect her carers’ responsibilities might have on her performance. Ms King was awarded $19,685 in damages. King v Nike Australia P/L (Anti-discrimination) [2007] VCAT 70 (24 January, 2007 Maternity leave – return to work Before she went on maternity leave, Ms Rispoli agreed, in principle, to taking on a different role when she returned. The new role would, she was assured, be comparable in remuneration and status. Ms Rispoli took six months maternity leave then applied for a further three months. This was granted on condition that she agreed to move permanently into another equivalent role. The company wanted to appoint the person currently acting in her job to a permanent position. When she returned to work, Ms Rispoli found herself in a lower grade job with less responsibility and no budget. She had previously been responsible for a $1 m budget. The “developmental opportunity” she had been promised failed to materialise. She stayed with the company, however, and eventually moved to a more satisfactory project. Sixteen months down the track, however, she resigned. Ms Rispoli claimed, successfully, that she had been discriminated against on the ground of sex under the federal Sex Discimination Act. Despite her win, the fact that she stayed in the job meant that Ms Rispoli couldn’t claim compensation for financial loss. The magistrate, however, awarded her $10,000 for the loss of status and the company was ordered to give her a written apology. Rispoli v Merck Sharpe & Dohme & others, Federal Magistrate’s Court [2003] FMCA 160, date: 3 October, 2003 Maternity leave – right to comparable work position This case clarifies the entitlements of women returning to work after maternity leave, and in particular the interpretation of their right to a position comparable to their previous one. Ms Thomson was an accounts manager with Orica, a chemical company, when she went on maternity leave. She said that shortly before she was due to return from maternity leave she was told that she would not be allowed to resume her previous position as an accounts manager, which had been filled by a temporary employee in her absence. She was offered a different position, although Orica claimed it was identical and equivalent to the one she had done before going on maternity leave, and had significant responsibility which called for her skills and experience. Ms Thomson disagreed, and made a complaint of sex and pregnancy discrimination to the Human Rights and Equal Opportunity Commission. The complaints were heard by the Federal Court, which found that she had in effect been demoted in status, even though her salary and conditions of employment remained the same. The Court accepted that Ms Thomson's previous position was a more challenging one which involved more responsibility and was concerned with 'strategic customers' of the business. It found that the duties offered to Ms Thomson on her return from maternity leave were sufficiently different to make it clear she was being given a position of significantly lower status. The Court also found that the unfavourable treatment of Ms Thomson was at least in part due to the taking of maternity leave. As maternity leave is generally a characteristic of women who are pregnant, it decided that Ms Thomson had been discriminated against on the ground of her pregnancy, and that she had been constructively dismissed. This case makes it very clear that employers cannot effectively 'demote' employees by refusing to return them to their original position following maternity leave, and by offering them work that is of a lower status and level of responsibility. The fact that the salary and conditions remain the same does not preclude action being taken for discrimination. This recognises the impact that a 'demotion' has both in terms of distress to the individual woman who loses status and responsibility and also on their career development opportunities. Generally a woman is entitled to return to the position she held before maternity leave was taken. If the position no longer exists, for example because of a genuine restructure, then she is entitled to any other available position for which she is capable of performing that is as nearly as possible comparable to her previous position. Thomson v Orica Australia Pty Ltd, Federal Court of Australia FCA939, date of decision 30 July 2002 Maternity Leave - Nurse victimised following maternity leave The NSW Administrative Decisions Tribunal has found that a NSW hospital discriminated against and victimised a nurse by failing to return her to her previous duties when she resumed work following maternity leave. Ms Correy worked as a nurse in the palliative care unit at St Josephs Hospital in Aurburn for more than a decade. Before she returned from 12 months maternity leave she requested her hours be reduced from 24 to 16 per week. When she returned she was rostered to work on the aged psychiatric ward. She objected to this because her personal experience as a victim of domestic violence meant she was not suited to such a role. Despite Ms Correy having worked in palliative care for ten years the hospital argued there were no vacant positions in palliative care, she had not been employed specifically in palliative care and that she did not have a right to expect to work there on her return from leave. From then on she was rostered to work on aged psychiatry – the ward she had stated was most distressing for her. When the hospital refused to roster her in her old position, she didn’t return to work and pursued her discrimination claim. The ADT ruled that while Ms Correy might not have been employed specifically to work in palliative care, St Josephs had created the position by allowing her to work there for ten years. She was, therefore, entitled to return to it after her maternity leave. It found that the hospital had discriminated against her because of her caring responsibilities and her gender. The Tribunal also found that rostering her in aged psychiatry was victimisation because she had made the discrimination complaint. She was awarded $26,121 for economic loss. The ADT found that the hospital had breached its contract of employment with Ms Correy in failing to comply with its statutory obligations with respect to maternity leave. However, the Tribunal rejected the nurse’s claim for $30,000 in general damages, for injury to her feelings, embarrassment and humiliation, stress, loss of confidence and loss of enjoyment of life. Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104 (10 May 2007) Maternity leave - WA mineworker maternity leave decision upheld The decision that a female mineworker was treated unfairly when she returned from maternity leave has been upheld by the full bench of the WA Industrial Relations Commission after a jurisdictional challenge. The mining company had written to the woman early in her maternity leave and told her that she would return to the position of underground geotechnician. However, her position was subsequently made redundant and she was not advised of this until she was ready to return to work. The company offered her other positions that effectively represented a significant lowering of her salary. The original decision said that an “equivalent position” must be of the same value, whether it was paid by the same hourly rate or not. A remedy has not yet been decided. Ivy Bilos v Aurion Gold [2004] WAIRC 13463 Policy Policy development This isn’t an EEO/discrimination/harassment case, but the decision is important because of what it says about policies. The applicant claimed that he had been unfairly dismissed after approaching a fuel spill with a lighted cigarette. He claimed the risk was minimal. He’d put out his cigarette at least 17 metres away from the spill, which was small and involved a fuel that had a high flashpoint. Serco Sodexho’s policy, however, stated that employees should not approach within 25 metres of a fuel spill. The Commissioner agreed that the firefighter’s attitude was “cavalier” and “complacent” and that Serco was justified in dismissing him. Serco hadn’t, however, considered his 20-year good service record, and hadn’t investigated the matter fairly. Of particular interest, are his comments on Serco’s policy for emergency procedures. It was, he said, inadequate. It didn’t set out a procedure for dealing with fuel spills. Rather, it relied on employees’ commonsense. This, he said was too subjective and too variable. Finding also that Serco had not made sure staff knew about it’s smoking rules, and hadn’t consistently enforced the rules, dismissal was “harsh, unreasonable and unjust”. Robert Douglas Korten v Serco Sodexho Defence Services Pty Ltd, Australian Industrial Relations Commission, date: 3 October 2003 Pregnancy Pregnancy dismissal claim upheld by AIRC A pharmacy assistant sacked due to her pregnancy has been reinstated. The AIRC ruled that Eleano Nominees Pty Ltd, the operator of a chemist shop in Melbourne, unlawfully dismissed the assistant because of her pregnancy. The case demonstrates that unlawfully dismissed employees of small to medium sized businesses can succeed in the AIRC’s unfair dismissal jurisdiction without having to pursue an unlawful termination action in the courts. Commissioner John Tolley’s ruling is timely given the debate over access to unfair and unlawful dismissal remedies under the Federal Government’s proposed IR changes, which would remove access to the AIRC’s unfair dismissal jurisdiction for employees of businesses employing fewer than 100 workers. The Commission heard that the assistant experienced severe morning sickness during the early stages of her pregnancy that required her to take some time off work. During ‘a particularly severe bout of illness’, the assistant’s husband rang the pharmacy and spoke to the director/pharmacist in charge, who said his wife shouldn’t be working in the pharmacy while pregnant. When the husband asked the director to clarify his position, he said: ‘we both know that if she’s pregnant she’s not good enough to stay here, she should be at home and you should work for her’. Commissioner Tolley found that she was dismissed because of ‘the effects (morning sickness) of her pregnancy’. The director didn’t oppose the assistant’s reinstatement. The Commission also ordered she be compensated for lost earnings. Scarpa v Elaeno Nominees Pty Ltd. PR96 1595 (19 August 2005) Pregnancy - pregnant employee can use accrued sick leave entitlement The Federal Magistrates Court found that Qantas discriminated against a flight attendant by refusing to allow her to access her sick leave when she was no longer able to work in the air, on the grounds that she was pregnant rather than sick. Under the applicable Certified Agreement, flight attendants have to stop flying at a certain stage of their pregnancy due to the potential radiation danger. In this case there were no ground-based jobs available to the woman at an equivalent salary level, so she asked to use her sick leave. Qantas said she must accept the clerical position on offer or go on unpaid maternity leave. The employee successfully argued that Qantas’ refusal of her sick leave claim meant that she was treated less favourably than another hypothetical employee who was not pregnant but was also unable to perform flying duties by reason of a medical certificate. However, the court found that Qantas was not discriminating against her by offering her the low-paid ground job, and did not constructively dismiss her or indirectly discriminate against her by failing to offer her part-time work in her previous role when she returned to work. Howe v Qantas Airways Limited [2004] FMCA 242 Pregnancy - light duties, worker discriminated against The NSW Administrative Decisions Tribunal found the North Coast Area Health Service indirectly discriminated against a heavily pregnant blood collector by failing to provide her with light duties. Additionally it found NCAHS was not properly prepared to deal with the needs of pregnant employees. The bench pointed out that the NCAHS was prepared to provide light duties to employees on workers compensation and accommodate those within its budget constraints, but not to pregnant employees. It said it wasn’t good enough for the employer to merely impose the discriminatory requirement that the employee continue with her normal duties. Before imposing such a requirement NRAHS was required to do more in the circumstances than to say, in effect, ‘there is no policy, there are no vacancies, there’s no money, and there’s no legal requirement’ (to accommodate the request for light duties). The bench said that imposing the requirement had no ‘logical and understandable basis’, for the following reasons: the absence of a written policy to deal with requests such as [the blood collector's]; the absence of any training of staff as to how to deal with requests such as [the blood collector's]; the absence of a system that explored the possibility of alternative arrangements in response to requests such as Ms Jordan's; and, relatedly, the provision of light duties to an employee whose inability to work is protected by workers compensation legislation, but not to an employee whose inability to work is protected by anti-discrimination legislation. The Health Service has been ordered to pay $7500 in compensation. Jordan v North Coast Area Health Service (No 2) [2005] NSWADT 258 (16 November 2005) Race Race discrimination – rostered off because of accent The Administrative Decisions Tribunal has found that a Sri Lankan-born correctional services officer was discriminated against on the basis of his race when his supervisor took him off the roster at a jail’s control centre because she couldn’t understand him. The man had been with corrective services since 1990 and had been working with his supervisor for 16 months when she swapped shifts around so that he was replaced in central control by another officer of Caucasian background. When he asked her why she responded that “I’m not a racist but I cannot understand you”. When the man made a formal complaint, the jail’s acting supervisor ordered it be dealt with swiftly, and six days later ordered that he be put back on the central control roster. The supervisor claimed that the shift change was due to performance issues, however she had not raised any performance issues with him before. The Tribunal decided the comment was racist. He had not suffered any economic loss, but it awarded him $1000 compensation for hurt and humiliation. Perera v Commissioner for Corrective Services [2007] NSWADT 115 Race discrimination – accommodation The complainant, who is Aboriginal, had shared premises owned by the respondent with a friend, who was the lessee. After a period the friend moved out, and asked the respondent if the complainant could take over the lease. The friend gave evidence that the respondent refused and said he thought the respondent was not capable of paying the rent. She said he had also previously complained to her about Aboriginal people visiting the premises. The complainant said she then directly asked the respondent to lease the premises to her, but he refused and made remarks about Aboriginal people making noise, damaging houses and causing complaints from neighbours. She argued that this indicated that his refusal to lease her the premises was based on discrimination because of her Aboriginality, The respondent denied the allegation, and said he had not objected to the complainant living in the house. He said that the complainant only asked to lease the premises after he had made arrangements for them to be leased to a new tenant. He also disputed many of the events contained in the statements of the complainant and her witnesses, relating to the circumstances of the original lease and the showing of the house to other prospective tenants after the complainant’s friend had moved out. The complainant introduced evidence from five witnesses including herself, whereas the respondent produced no additional evidence apart from his account of the facts and events. The Tribunal found significant inconsistencies in the respondent’s evidence, whereas it held that the evidence of the complainant and her witnesses was credible and persuasive. The Tribunal found in her favour and ordered that the respondent pay her $10,000 in damages. Although this case does not raise new legal issues, it highlights a serious breach of anti-discrimination law in NSW. In its judgement, the Tribunal noted that the right to housing is a fundamental human right recognised under various international human rights instruments. On this basis, the actions of the respondent amounted to a serious violation of human rights. The Tribunal noted that not all discrimination is equal in nature and effect and regards this type of discrimination – a denial of access to housing – as a serious offence. Sheather v Daley, NSW Administrative Decisions Tribunal, 12 March 2003 Race discrimination - employment in a club Ms Badke was employed as a parttime clerk in a Queensland club. The club had Japanese management and catered for Japanese visitors. She did not speak Japanese, but during the three years she was employed, management accommodated this lack by providing an interpretor each week to assist with necessary communication. After a restructure, Ms Badke’s employment was terminated. She was told that the company needed someone who could read and write both Japanese and English. Incensed, she then took her case to the Industrial Relations Commission and argued that her dismissal was unfair. She had, she said, been discriminated against on the ground of her race. Under antidiscrimination laws, “race” can include “attributes” of race, such as skin colour or language. Racial discrimination can involve being treated less favourably than others in similar circumstances because of an attribute of your race. The Commissioner, however, said that Ms Badke had not been discriminated on the ground of race. Less favourable treatment because of an inability to speak a particular language, such as English, may well constitute race discrimination. In this case, the Commissioner said, the ability to read and write in Japanese was a genuine job requirement. Badke v Orchid Key No 2 Pty Ltd, Queensland Industrial Relations Commission, No B1172 of 2003, date: 13 January, 2004 Race discrimination - Sydney hotel’s door policy discriminatory The NSW Administrative Decisions Tribunal has found that a Sydney hotel and their security firm discriminated against a man on the ground of his race when he was turned away by door men because of the hotel’s policy that people of Pacific Islander and Middle Eastern appearance were to be refused entry. Mr Cook is of Pacific Islander descent. The hotelier at Scruffy Murphy’s maintained he had introduced the policy because a number of assaults had occurred in the hotel’s vicinity allegedly by people of Pacific Islander and Middle Eastern appearance. The doormen that night were employed by T&B Security Services and had been instructed by the hotel to enforce the policy. Scruffy Murphy’s accepted Mr Cook’s version of events and agreed that it was in breach of the ADA. The hotelier apologised to Mr Cook at a conference at the Tribunal. The Tribunal found that the complaint against Scruffy Murphy’s was substantiated under s19 of the Act. However, the security firm argued that Mr Cook was not refused entry because he was an Islander. The Tribunal preferred Mr Cook’s version of events and noted that the hotelier had instructed the security staff to enforce the policy. The Tribunal found that T&B Security Services had aided and abetted Scruffys and had breached s52 of the ADA. The Tribunal found that Mr Cook had suffered hurt, humiliation, embarrassment and distress and awarded him a total of $5000. Scruffy Murphy’s was ordered to pay $2500 as compensation for the incident. While it had acknowledged its breach, it was the creator of the discriminatory policy and had instructed T&B to carry it out. T&B Security Sevices was ordered to pay $2500 because it had enforced the discriminatory policy and had prolonged the distress suffered by Mr Cook by its handling of the complaint. Cook v Scruffy Murphy’s Pty Ltd and anor [2007] NSW ADT 129 Race discrimination - real estate agency An Aboriginal woman from the Bundjalung community who lives in Casino tried to rent a property through JM Realty and was advised of five available properties. After completing the application form and submitting references she was advised by JM Realty that she would hear from them soon. Over the next fortnight she contacted the agency regularly with no success. After her brother-in-law and sister-in-law, who are not Aboriginal, enquired about similar properties and were informed of a number available, the woman and her mother went to the Agency and enquired about available rental properties – they were told there were none available. Consequently she lodged a complaint of direct race discrimination in breach of section 20(1) of the Anti-Discrimnation Act. The NSW Administrative Decisions Tribunal found that there was no evidence presented which proved that similar applications from non-Aboriginal people were treated differently. Ms King’s brother-in-law and sister-in-law had not actually applied for a property and they were therefore not an appropriate comparator. In the absence of a suitable comparator that allegation ie breach of s20(1)(a) was not proven. However, the Tribunal found that Ms King’s subsequent visit to the agency with her mother was, in effect, a further request for accommodation. The proper comparison therefore is with other non-Aboriginal people who made the same enquiries about accommodation on that day. Ms King’s brother-in-law and sister-in-law’s treatment is relevant for the purposes of that comparison. The Tribunal found that in relation to her subsequent enquiry on the same day as her brother-in-law and sister-in-law Ms King had been treated less favourably than other people who also enquired about rental properties in that range on that day. The Tribunal found that Ms King had a prima facie case that in comparison with other people making enquiries about a rental property that day, the reason she was not given any listings was because of her Aboriginality. The Tribunal looked at the evidence and concluded that there was no more probable and innocent explanation for the treatment of Ms King. There was evidence from Ms King that she suffered hardship as well as physical and emotional difficulties as a result of being unable to find suitable accommodation until 8 to 9 months after the incident. Her claim was based on psychological damage rather than economic loss. The Tribunal accepted that Ms King’s had suffered a psychological injury but that her mental state was only partially a result of her treatment by the agency. It awarded her $3,000 for non-economic loss. King v John McMahon Stock and Realty Pty Ltd t/as JM Realty [2005] NSWADT 260 Race discrimination - terrorist insult costs employer 25,000 The NSW Administrative Decisions Tribunal found that a company breached the Anti-Discrimination Act when it failed to take any effective action to stop racial discrimination against a staff member. The former employee, who is a Muslim, was called ‘bombchucker’ and ‘Osama Bin Laden’ by fellow staff including mangers and a long-term union delegate. The worker had delayed complaining about the insults because he was afraid of losing his job, but eventually took his case to the Anti-Discrimination Board, which referred it to the Tribunal. The managers denied abusing the former forklift driver but the union delegate conceded under cross-examination that he had heard of the name calling. The delegate, who was of Italian background, claimed that racial slurs were common at the workplace and that he had been called ‘wog’ and ‘dago’. The Tribunal said that the name calling in this case was qualitatively different from being called a ’wog’ or ‘dago’ because it ‘suggested that by being a Muslim the [driver] was also a terrorist’. The conduct breached the prohibitions in section 7 of the NSW Anti-Discrimination Act on racial discrimination, specifically on ‘ethno-religious’ grounds. The Tribunal found that the name-calling had occurred over several months and had caused the worker ‘a great deal of distress, humiliation and embarassment’. It ordered general damages of $25,000 plus court costs. Abdulrahman v Toll Pty Ltd trading as Toll Express [2006] NSWADT 221 (1 August 2006) Racial vilification – anti-Semitism, internet These proceedings were commenced by the applicant to enforce a determination by the Human Rights and Equal Opportunity Commission that the respondent had breached s 18C of the Racial Discrimination Act 1975 (Cth). The respondent was held to be responsible for the actions of an unincorporated association known as the "Adelaide Institute" and for placing material on the Adelaide Institute's website that vilified Jews. Branson J, in deciding whether 'publication of the material was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate a Jewish Australian or a group of Jewish Australians' adopted the approach Hely J used when he considered the way s 18C of the Act should be interpreted in Jones v Scully below. Branson J found that the offending material challenged and denigrated a crucial aspect of the perception of Australia's Jewish community of its own history and the circumstances in which many Jews came to Australia to re-build their lives. She was therefore satisfied that to the extent that the material conveyed these imputations it was more probable than not that it would cause them hurt and pain as well as a sense of being treated contemptuously, disrespectfully and offensively. Branson J held that it was 'abundantly clear' that race was a factor in the respondent's decision to publish the material in question. She commented that she was 'satisfied that it is more probable than not that there are members of the Australian Jewish community who will become fearful of accessing the World Wide Web to search for information touching on their Jewish culture because of the risk of insult from the material...' The applicant originally sought an order from the Court that the respondent deliver a written statement of apology. Branson J held that it was not appropriate to compel the respondent 'to articulate a sentiment that he plainly enough does not feel'. The applicant also sought a statement of retraction by the respondent. Her Honour refused to make this order on the ground that there is little difference between an apology and a statement of retraction. The Court ordered the respondent to remove the offending documents from the Adelaide Institute's website. The respondent was also restrained from publishing or republishing the same material. Jones v Toben, Federal Court of Australia, date of Decision: 17 September 2002 Racial vilification – anti-Semitism, pamphlets The applicant commenced proceedings in the Federal Court to enforce a determination made by the Human Rights and Equal Opportunity Commission that the respondent breached s 18C of the Racial Discrimination Act 1975 (Cth). The prohibited conduct engaged in by the respondent consisted of distributing a range of anti-Semitic pamphlets in letterboxes and from a stall at a market place in Launceston. The Court noted that the use of the phrase 'reasonably likely' in 18C(1)(a) in the Act created an objective test and consequently the applicant was not required to prove that any person was actually offended, insulted, humiliated or intimidated by the pamphlets in question. The Court accepted that the phrase 'offend, insult, humiliate or intimidate' refers to conduct that has 'profound and serious effects, not to be likened to mere slights'. As the Act provides no assistance about how the phrase should be interpreted, Hely J found the words should be given their ordinary English meanings. The Court accepted that when assessing whether any of the pamphlets was reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people, the perspective of an Australian Jew, or Australian Jews as a group should be adopted. The Court rejected the respondent's arguments that she had not targeted Jews as a group and that the general statements made in the pamphlets only referred to those Jews who were named or involved in particular activities. Hely J found that the general message conveyed by the pamphlets was that Jews share particular features that should be condemned, ridiculed or despised. The Court declared that the respondent had engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act by having distributed the leaflets in letterboxes and by selling the leaflets at a public market. The respondent was also restrained from repeating or continuing this conduct. His Honour refused to award damages on the ground that damages would be neither an adequate or appropriate remedy in the circumstances. Jones v Scully, Federal Court of Australia, Date of Decision: 2 September 2002 Racial vilification – in an apartment block The complainants visited an apartment complex with a view to renting a unit. At the time the agency that owned the complex had two representatives on the premises, one who was responsible for leasing apartments, and the respondent, who was responsible for selling them (and also lived in the complex). The letting agent had problems with the keys for the units for lease, and the complainants were at the property for several hours. In the process of attempting to resolve the key problems there were several exchanges between the respondent and the complainants. The complainants and the respondent disagreed about the exact nature of these exchanges, and the other main witnesses (the letting agent and the respondent’s friend) did not give evidence. However, the Tribunal was satisfied that when the respondent became irate with the first complainant’s persistent requests for help to access the units for inspection, the first complainant responded by presistently buzzing the respondent’s unit. The respondent and the first complainant then engaged in a mutually abusive and offensive tirade, in which both parties were shouting and making statements using very offensive language. The Tribunal was also satisfied that the first complainant started a further altercation when the complainants were leaving by shouting at the respondent, and that both complainants made offensive gestures to him. Although the complainants provoked the respondent, the Tribunal found that he responded in a racially discriminatory way by referring to the first complainant, who is Afro-American, as a ‘black bastard’ and a ‘coon’, and that he had also discriminated against the second complainant on the basis of the race of her husband. However, it found that the discrimination was not unlawful as the connection with goods and services or rental accommodation was not sufficiently direct. The Tribunal found that as these abusive remarks were made in the hearing of other residents in the complex, they constituted a public act, and were capable of inciting hatred, serious contempt or severe ridicule of the first complainant. The complaint of racial vilification against the respondent was therefore substantiated, but the complaint of vilification against the second complainant could not be established, as it did not occur on the ground of her race. The Tribunal awarded the first complainant $2,000 in damages, saying that this award would have been greater if he had acted in a more restrained and less provocative manner. It declined to order the respondent to apologise, on the grounds that this was inappropriate given the level of provocation. Kimble and Souris v Orr, NSW Administrative Decisions Tribunal 49, date of decision: 11 March 2003 Racial vilification – intention to incite hatred The appellants appealed against a decision of the Administrative Decisions Tribunal which dismissed a complaint of racial vilification. The complaint concerned an article written on behalf of the Hellenic Council of New South Wales and published in O Kosmos, a national newspaper. The article discussed a decision made by the Australian government in 1994 to recognise the Yugoslav Republic of Macedonia, and to direct government agencies to refer to people from that Republic as "Slav Macedonians". The appellants were Australian citizens who identified as Aegean Macedonians. In the original case, they argued that the article vilified Aegean Macedonians on the ground of their race. The Tribunal held that although the article included statements that were inaccurate, and parts of the article might be inflammatory or distressing to some people, it did not amount to incitement for the purposes of s.20C(1) of the Anti-Discrimination Act (ADA). The appeal was on two grounds: that the Tribunal failed to comply with its statutory function under s.89(5) of the Administrative Decisions Tribunal Act 1995 (NSW) (ADTA), and erred in its interpretation of the word "incite" for the purposes of s.20C of the ADA. The Appeals Panel upheld the first ground of the appeal, and proceeded to consider the second ground of the appeal rather than remitting the matter to the Tribunal for a re-hearing. The Panel acknowledged that the case law on how s.20C should be construed is inconsistent, and took the opportunity to resolve this uncertainty. The Panel adopted and affirmed the approach in Western Aboriginal Legal Service v Jones, in which it was held that s.20C(1) does not require proof of intention on the part of the respondent to the complaint. The Panel also stated that it is unnecessary for a complainant to prove that anyone was actually incited by the public act, although it noted that evidence that the public act had an actual effect may be relevant in determining the capacity of the act to incite and the assessment of damages. The Panel noted that when considering whether a public act is capable of inciting others, the way in which the audience is characterised is extremely important. It held that defamation law provides useful guidance on how to approach this task because it has extensively considered the characteristics of "the ordinary reasonable person". The Panel decided that Hunt CJ's observations in Amalgamated Television Services Pty Ltd v Marsden (1998) can be applied to the construction of the vilification provisions. When assessing whether incitement of hatred, serious contempt or severe ridicule on the ground of race has occurred, a Tribunal should assess whether the ordinary reasonable person would understand from the public act that he or she was being incited. A Tribunal should not assess whether the ordinary reasonable person would reach this conclusion once his or her own views have been aroused by the public act. The Panel accepted that the language overall in the article was "perjorative and strident, in parts derisory", and that it targeted a group of people on the ground of their race. However, the Panel did not accept that the ordinary reasonable person would be incited to hatred towards, serious contempt for, or severe ridicule of Aegean Macedonians by the article. The Panel therefore allowed the appeal on the first ground, set aside the original decision of the Tribunal and dismissed the complaint. This decision has finally resolved the uncertainty about whether a complainant is required by s.20C of the ADA to demonstrate that a respondent intended to incite hatred, serious contempt or severe ridicule. It is now clear that a complainant is not required to prove intention. Veloskey & Anor v Karagiannakis & Ors, Administrative Decisions Tribunal - Appeals Panel, date of decision - 27 June 2002 Racial vilification – interpretation of the word ‘Incite’ This case looks at the interpretation of the word 'incite' for the purposes of the NSW Anti-Discrimination Act, how the ordinary reasonable reader should be characterised in assessing whether a public act is capable of inciting hatred, serious contempt or severe ridicule for a person because of their race, and the importance of distinguishing between the reasonableness of a public act and its content in deciding whether it was done reasonably and in good faith. In June 2000 the Administrative Decisions Tribunal found that an article published in the Australian Financial Review in December 1998 would incite hatred or serious contempt of Palestinians, and the respondent had not demonstrated that the article was published reasonably and in good faith. The respondent appealed against the decision on several bases. The first was that the word 'incite' in s 20C should be interpreted to imply an intentional act, as this is the case in s 20D. The Appeal Panel held that sections 20C and 20D are distinguishable because 20D creates a penal provision and 20C is a civil provision, and that the ordinary meaning of 'incite' does not necessarily involve an element of intention. Also, the Attorney-General stated in the Second Reading Speech introducing the racial vilification provisions that even though the word 'incite' was used in both 20C and 20D, there was no requirement for intent in relation to 20C. The Appeal Panel therefore rejected the appellant's submissions on this point. The appellant also submitted that the Tribunal erred in applying the ordinary reasonable reader test to determine whether the article could incite hatred, serious contempt or severe ridicule. The Tribunal had held that the social and historical context in which a public act took place should be taken into account when assessing whether the act was capable of inciting hatred. The Appeal Panel applied the decision of the New South Wales Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden, and held that the test is whether the ordinary reasonable reader could understand that he/she is being incited, not whether he/she could reach such a conclusion after his/her own beliefs have been brought into play by the public act. The Panel also held that social and historical factors are only relevant to the extent that they can be presumed to be part of the ordinary reasonable reader's general knowledge. The respondent had unsuccessfully argued in the Tribunal that the article was published reasonably and in good faith for several reasons: the article appeared on the opinion page, the respondent published letters and articles written in response, and the newspaper was providing a forum for debate on an important international issue. The Tribunal had rejected the contention that it was reasonable to publish such an article simply because it related to international politics. The Appeal Panel found that the Tribunal was incorrect in linking the requirement of reasonableness with the content of the article. It held that publishing letters and competing views 'reasonably contemporaneously' with the article was relevant to whether the article's publication was reasonable. The Appeal Panel therefore set aside the Tribunal's decision and considered the merits of the complaint. The appellant argued that the ordinary reasonable reader would possess a knowledge of the Middle East peace process and would be aware that he or she was reading an opinion piece. They also argued that the article only conveyed the author's beliefs about the Palestinian leadership, not the Palestinian people. The Appeal Panel accepted this, and found that although the article might be said to express serious contempt or hatred towards the Palestinian leadership, that does not constitute a contravention of the Act. However, the Appeal Panel rejected the appellant's submission that any public act presented as an expression of opinion was incapable of contravening s 20C, finding that the language used in the article is also relevant. The Appeal Panel found that even if the article had incited hatred towards or serious contempt for the Palestinian people, the exception set out in s 20C(2)(c) would apply. It held that the rationale behind the decision to publish is relevant when assessing whether the act of publication was in the public interest, and this is revealed by the actions of the publisher over a period of time, such as giving a voice to both sides of a debate. Fairfax Publications v Kazak – Appeal Decision, Administrative Decisions Tribunal, date of decision: 25 October 2002 Racial vilification - $1.9 million in damages for workplace bullying and racial vilification The NSW Supreme Court has awarded a former security guard $1.9 million in compensation for relentless and brutal bullying by his supervisor. The Fijian-born employee suffered post-traumatic stress disorder and depression after being subject to physical assaults, indecent exposure, racist and sexist verbal abuse, financial threats and extreme and unpaid hours while working with the companies between 1992 and 1997. He has not worked since. Mr Naidu would start work at 7am and not be allowed to go home until 10pm. He was regularly sworn at, called names such as ‘coconut head’ and ‘monkey face’, and when he wanted to go to the toilet he would have to ask his supervisor’s permission. NSW Supreme Court Justice Michael Adams described the abuse of Mr Naidu at the hands of News Ltd’s security and fire manager, Lance Chaloner as extraordinary. The court heard the abuse started in 1992, when Mr Chaloner threw tantrums and would kick chairs from under Mr Naidu. The judge said the most extreme behaviour exhibited by Mr Chaloner was during a strike in 1993, when the guards were required to live on the premises of Cumberland newspapers. Mr Naidu was forced to guard the shower cubicle, which did not have a door. He gave evidence that Mr Chaloner would masturbate in the shower, taunt him, and on emerging, squeeze Mr Naidu’s genital area. News Limited will share the damages with Group 4 Securitas which employed Mr Naidu. Justice Adams included a disputed award of $100,000 in damages against Group 4 Securitas for breach of its employment contract, which he found contained an implied term that the employee ‘would not be intimidated by physical or verbal abuse by persons with whom he was required to work nor was he to be subjected to personal or racial vilification’. The calculation includes $150,000 in exemplary damages against News Ltd and general damages of $350,000 ($200,000 by News Ltd and $150,000 by Group 4), with the bulk of the rest for lost earnings, medical expenses, costs and interest. Naidu v Group 4 Securitas Pty Ltd & Anor [2006] NSWSC 144 (15 March 2006) Religious belief QLD: “religious belief” includes absence thereof A family support worker who was made redundant by a Baptist Community Church because she was not a member of the church succeeded in arguing the jurisdiction of the Queensland Anti-Discrimination Commission to decide her complaint. When she started the job she was a member of the church, although this was not a requirement at the time. Two years later, after she had stopped attending the church, she was presented with a new contract which required her to be an active member. Her employment was eventually terminated on the grounds of redundancy. The QLD Anti-Discrimination Act has been amended since her redundancy to specify that absence of beliefs does fall within the scope of the Act. The Queensland Supreme Court held that in view of what was essentially a clarification, the Act as it then was could be held to cover an absence of belief, and the matter was remitted to the Queensland ADC. Dixon v Anti-Discrimination Commissioner of Queensland [2004] QSC 58 Religious discrimination - no exemption for Baptist Church The Victorian Civil and Administrative Tribunal rejected an application from a Baptist Church agency that would have allowed it to only employ people with particular Christian beliefs to work in its outreach and community care projects. Mornington Baptist Church Community Caring Inc. (MBCCCI) wanted to employ people who had ‘publicly confessed Jesus Christ as both saviour and lord of their lives, have been baptized as believers in obedience to Christ’s command and are walking in daily fellowship with Jesus and his people’. Deputy President Cate McKenzie wasn’t convinced that an organisation that operated programs for all people without discrimination should itself be allowed to discriminate as to who it employed. She said a diversity of beliefs among employees could be beneficial to clients of the service, would better reflect the diversity of the Mornington community and would also give the organisation a bigger skilled employee pool to draw on. Deputy President McKenzie said that if she received a further application from MBCCCI she may be prepared to allow a more limited exemption. ‘Such an exemption could perhaps permit an applicant for employment or employee to be asked to agree that they would not, in the course of their employment, criticise the Baptist faith and agree to a requirement that they would explain to clients the role of MBCCCI and its links with the Mornington Baptist Church, and also, if requested by clients, they would be able to refer these clients to someone either in MBCCCI or in the Mornington Baptist Church who could give them the necessary advice or guidance as to matters of Christian faith’. Mornington Baptist Church Community Caring Inc (Exemption Anti-Discrimination) [2005]VCAT 2438 (10 November 2005) Services Services and discrimination This case looks at the interpretation of 'service' for the purposes of the NSW Anti-Discrimination Act, and whether the Department of Community Services (DOCS) provides a 'service' when it assesses applications by people to become foster parents. The case was a preliminary hearing on a point of law, and did not consider the allegations of discrimination. The complainants, Mr MM and Ms AM, applied to DOCS to become foster parents, and their application was rejected. Both complainants alleged that DOCS discriminated against them on the ground of disability, and Ms AM alleged that she was also discriminated against on the ground of marital status. It was not in dispute between the parties that Mr MM has bipolar disorder. DOCS argued that the decision of granting or refusing approval to persons to become foster parents involved the performance of a statutory duty only and did not constitute the provision of a 'service' for the purposes of the Act. In reaching its decision about whether DOCS' determining of the complainants' application did constitute a 'service', the Tribunal considered the judgments at the High Court in IW v City of Perth (1997). In this case the Court considered the meaning of the word 'services' for the purposes of the Equal Opportunity Act 1984 (WA). The majority held that 'services' was a 'word of complete generality [which] should not be given a narrow construction unless that is clearly required by definition or context'. The Tribunal found the following passage from the judgment of Gummow J particularly relevant: There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions.' The Tribunal also followed the general approach of the judgement in Commissioner of Police, NSW Police Service v The Estate of Edward John Russell, in which the court held that NSW police officers provide 'services' for the purposes of the Anti-Discrimination Act when dealing with a person who has been arrested and is in police custody. The Tribunal declared that the way in which DOCS had conducted its defence to the complaint sought to induce a false dichotomy, which was not sustainable. The Tribunal held that even if one accepted that 'legislative' and 'quasi-judicial' activities performed by public authorities are not 'services', these limitations had no relevance to the case of MM and AM. The Tribunal also looked at the Children (Care and Protection) Act (1987), which governs the placement of children in foster care and the selection of appropriate people to be foster carers. The Tribunal described these sections of the Act as 'not particularly clear', but after considering several provisions in detail ultimately concluded that both the Minister and the Director-General of the Department of Community Services did provide 'services' within the meaning of the Act when they assessed applications by people to become foster parents. The Tribunal emphasised that the judgement was not inconsistent with the fact that the Minister and the Director-General also provide 'services' to children at risk and to the wider community when DOCS assesses whether applicants would be appropriate foster parents. The Tribunal held that although the interests of the relevant children are paramount when statutory powers are exercised to provide foster placements, this does not mean that the Minister and the Director-General are free to ignore laws such as the Anti-Discrimination Act when choosing people to be foster parents. The Tribunal clearly stated, 'If it was the wish of the executive to be free of the constraints of the Anti-Discrimination Act when choosing foster parents it was open to the Minister and/or the Director-General to make an application for an exemption under s 126 of the Act.' The Tribunal ordered that the complaints be listed for a further case conference to allow the parties to make submissions before proceeding to full hearing. The Department of Community Services is appealing the decision. MM and AM v State of New South Wales (Department of Community Services), Administrative Decisions Tribunal, Preliminary matter - construction of 'services' for purposes of Anti-Discrimination Act 1977 (NSW), date of decision: 6 December 2002 Sex discrimination - equal remuneration principle The NSW Industrial Relations Commission handed down a landmark decision in the first test case brought under the equal remuneration principle established by the Commission in June 2000. The case was brought by the Public Service Association (NSW) on behalf of approximately 2,000 NSW public service and TAFE librarians, archivists, library technicians and library assistants. The full bench of the IRC found that librarians' work in the public sector has historically been undervalued on a gender basis and awarded them significant pay increases. The Commission found that: librarians could properly be considered a profession in the general sense; librarians and archivists 'fitted comfortably' into the group of occupations regarded as public service professionals eg. lawyers, teachers and scientific officers; the work of librarians, library technicians and archivists had been historically undervalued on a gender basis; there have been significant increases in the work, skill and responsibilities of these workers which had not been properly taken into account in fixing their wages; librarians are currently paid at lower rates than similar public sector groups; and· there should be a single award applying to librarians, library technicians and archivists. Under the State's equal remuneration principle, applicants are not required to show that undervaluation arose from a specific act of discrimination, and can make appropriate comparisons to similar occupations which have not been undervalued. In its decision, the bench said, "[I]t is legitimate to compare current pay rates with those other groups exhibiting similar characteristics in order to assist in testing the validity of the contention that gender-based evaluation continues to exist." All the parties to the case, including employer groups, acknowledged that the work undertaken by librarians had been undervalued on a gender basis, but differed on proposed remedies. The Commission decided that there should be a new award which should contain descriptors of position classifications. The bench wrote that the award descriptors would be important to "eliminate any doubt - and avoid future controversy - as to the contribution that previous job evaluation systems may have made to entrenching the undervaluation of the work.or masking the undervaluation because of deficiencies in the job evaluation systems themselves". The Commission made a 3-month interim award to give immediate effect to the decision. This allows for pay increases of around 9%, depending on the level of the position. The matter is due back before the Commission on 29 July 2002. The Industrial Relations Commission has made a decision which clearly recognises an area of female-dominated work which traditionally has been undervalued. As it is the first case to be heard under the new equal remuneration principle, further pay equity test cases from the public and private sectors can be expected. Pay Equity Decision, Equal remuneration principle, NSW Industrial Relations Commission, date of decision: 28 March 2002 Sex discrimination – wearing an earring in the workplace The complainant, a service station attendant, alleged that he was dismissed from his employment because he refused to remove a small stud-style earring he wore in his left ear. He alleged that female colleagues employed by the respondent wore earrings and were not asked to remove them. He argued that he had therefore received less favourable treatment on the grounds of sex and the respondents had unlawfully discriminated against him. The respondents denied the allegation, saying that the complainant had been employed on a trial basis and had breached his duties in various ways, including giving free cups of coffee to police and SES personnel without permission, spending too much time in the kitchen, being absent from his console and swearing at the respondents. The Tribunal found that it was not uncommon for men to wear earrings such as the one worn by the respondent, and it would not constitute a safety hazard or interfere with the complainant’s work. On the basis of the evidence provided it found that the earring was at least one of the reasons for the complainant’s dismissal, and that this not need be the dominant or substantial reason to be discriminatory. It also found that the respondent did not object to women in its employ wearing earrings. The Tribunal also considered the respondent’s application to have the complaint dismissed on the grounds that the Tribunal lacked jurisdiction to determine the matter, as the applicant had brought the same issue before the Australian Industrial Relations Commission. The Tribunal determined that on the evidence available it was not possible to reach a conclusion on the status of the proceedings at the AIRC. It held that the applicant’s claim under the NSW Anti-Discrimination Act and his claim before the Industrial Relations Commission concerned distinct and separate issues and were therefore open to concurrent prosecution. The Tribunal found in favour of the complainant and awarded him $16,956 in damages. It also ordered the respondent to pay the plaintiff’s legal costs, agreeing with the complainant’s proposition that he would effectively lose part of the compensation award if an order for costs were not made. The Tribunal also noted that the respondent did not attempt to settle the complaint despite opportunities to do so over a long period of time. Bree v Luprevo Pty Ltd & Ors, Administrative Decisions Tribunal, date of decision: 11 March 2003 Sexual harassment - AIRC upholds harassment dismissal The AIRC upheld the dismissal of a Victorian Department of Human Services employee for sexually harassing male and female employees he supervised at a Victorian Government juvenile justice facility. The AIRC also recommended the Department remedy a pervasive inappropriate culture. The employee was dismissed after a female employee alleged he made offensive comments and inappropriately hugged and touched her. Male employees also claimed he had simulated sex and touched them inappropriately. Deputy President Ken Ives upheld four of the five counts on which the DHS sacked the man: making comments to a female employee including ‘let’s go out for a root’ and ‘your arse looks good’ as well as making suggestions he’d like to perform oral sex on her; sexually and physically assaulting the female employee by forcing her onto the ground, licking and biting her on the neck and ear and by hugging her; assaulting a male employee by grabbing him and simulating sexual intercourse; and touching other male employees’ genitals and buttocks. The supervisor told the AIRC that hugging and putting his arm around his colleagues was meant ‘more in the sense of familiarity than in any sexual sense’ and that in general he was just a ‘touchy-feely guy’. Deputy President Ives said that the acting supervisor should have been mature enough ‘to appreciate that physical contact in the workplace is, in all but exceptional circumstances, most likely to be inappropriate’. As a supervisor the employee’s duties included modelling appropriate positive behaviours. Deputy President Ives said that ‘By engaging in inappropriate conduct… the [supervisor] has failed to satisfy those duties’. The AIRC heard evidence that suggested the workplace had a pervasive ‘inappropriate culture of sexual banter and innuendo and physical contact’. The deputy president said that if such a culture existed, ‘it is incumbent upon the Department, especially given the client base for which it is responsible (and not in spite of it), that it be remedied as soon as reasonably possible’. John Mangiafico v Department of Human Services – Melbourne Juvenile Justice Centre. PR963416 (4 October 2005) Sexual harassment - butcher sexually harasses female salesperson The Victorian Civil and Administrative Tribunal awarded a female salesperson $8,000 in damages ruling that she was sexually harassed and that the harassment aggravated her previous medical conditions. The Tribunal heard that two male co-workers walked around the shop with pieces of meat hanging from their pants. They would also overemphasise words such as breasts and racks when discussing cuts of meat. One of the butcher talked about opening a brothel and once, within earshot of the salesperson, told a workmate: “It’s such a beautiful day. I’d really like to be in a spa with a beer in one hand and a **** in the other”. The butcher did not dispute that he made this statement except that he maintained he said “bourbon”, not “beer” The salesperson made regular complaints about her co-workers’ sexist remarks, at one point leading to the butcher receiving a verbal warning. The tribunal stated that the employer’s harassment policy was inadequate and poorly implemented. Deputy President McKenzie also found the part-time employee was not retrenched by Murray Meats Pty Ltd because she was a woman as she had alleged. She was retrenched on the same day her employer was dealing with another claim before the Equal Opportunity Commission. Deputy President McKenzie inferred that the employer was concerned that the salesperson might also lodge a complaint and this was a substantial reason for her termination. However she was not satisfied that a man would have been treated any differently. Styles v Murray Meats Pty Ltd [2005] VCAT 914 (12 May 2005) Sexual harassment - harasser reinstated after dismissal for sexual harassment The Queensland IRC ordered the Queensland Department of Justice and Attorney-General to reinstate a solicitor after finding that his disrespectful treatment of female colleagues did not warrant dismissal. The Commission accepted that the solicitor was was genuinely remorseful for his conduct in putting his arms around his supervisor’s hips while he was drunk. Commissioner Brian Blades said the solicitor’s conduct was partly explained, but not excused, by his ingestion of alcohol. The solicitor admitted to other conduct that the department had cited in dismissing him, but this occurred outside work. Commissioner Blades said this conduct was not ‘serious enough to warrant the interference by the employer in this out-of-work-activity’. Johnson v Department of Justice and Attorney-General [2005] QIRComm 188 (18 November 2005) Sexual harassment - inadequate procedures to prevent sexual harassment The Queensland Anti-Discrimination Tribunal found Queensland Health liable for sexual harassment of a female employee. Tribunal member Peter Rooney said that Queensland Health failed to take reasonable steps to prevent the harassment occurring during a three-month period after the employee complained of the sexual harassment. When action was finally taken the offender was counselled, moved to a different location and eventually dismissed. Member Rooney found that it was not sufficient for the complainant’s supervisors to inform the complainant that she should speak to him and ask him to stop his behaviour but not do anything else to ensure ‘he understood his responsibilities to ensure that his conduct fell within acceptable limits’. The Member agreed that there had been difficulties in acting on the early informal reports of the harassment because of the complainant’s requests for anonymity and he also found Qld Health had acted reasonably after it held the counselling session with the offender. The offending actions included prolonged staring at the victim’s breasts, comments about her sex life and calling her ‘la petite poon poon’ (slang for vagina). The Tribunal ordered Queensland Health pay $14,665 in compensation. It reduced the compensation award against the State Government as vicarious employer by $6,500 (less costs) already paid by the offending co-worker in a separate settlement. The tribunal awarded the counsellor $7,500 in general damages and $6,823 for loss of salary, plus medical costs and interest. Webb v State of Queensland [2006] QADT 8 (23 March 2006) Sexual harassment – inappropriate comments This case looks at the issue of how to identify offensive conduct in the workplace, particularly in a situation where the respondent has previously engaged in conduct that some may regard as offensive. Ms Horman, who worked for Repco Auto Parts as a spare parts interpreter, brought complaints under the federal Sex Discrimination Act 1984 claiming that she was sexually harassed and discriminated against on the grounds of her sex, pregnancy and race at work. She alleged that her co-workers made sexually explicit remarks and remarks about pregnancy, and subjected her to racial harassment. The company denied the allegations. They conceded that there had been 'horseplay' in the workplace, but claimed that Ms Horman had been a willing participant in and instigator of this activity. They also conceded that there had been conduct of a sexual nature, but claimed that this was not unwelcome. The company argued that Ms Horman had brought her case because she had been made redundant and was not bona fide. They claimed that she had not followed the proper company procedures and had not complained of harassment during her employment. Although Magistrate Raphael found that Ms Horman was not truthful in all her evidence, he accepted that Ms Horman's co-workers had made sexually explicit comments, asked her to show her breasts, called her a 'stupid f---ing bitch' and called her a 'wog', a 'half caste' and a 'wog bitch'. Magistrate Raphael rejected the company's argument that as Ms Horman had participated in, encouraged or initiated conduct of a sexual nature in the workplace, a reasonable person would not have anticipated that she would be offended, humiliated or intimidated by conduct in the same vein. Magistrate Raphael was inclined to the view that the applicant did use bad language in the workplace, but pointed out that this may be the only way a person feels able to resist unpleasant language. The fact that a person swears from time to time does not necessarily mean that others swearing at them will not be unwelcome. The Magistrate concluded that in this instance the conduct complained of went beyond bad language to include direct insults and highly personal remarks or actions. He stated that although the conduct of the applicant excluded some of her complaints, those that remained were actions of which any reasonable person was entitled to complain. 'I found that everyone was entitled to draw a line somewhere and those activities crossed that line,' he said. The magistrate found that Ms Horman had been sexually harassed and had been discriminated against on the basis of her sex and her race, and awarded her $12,500 in damages. This case makes it clear that employers can be liable for conduct of a sexual nature that is unwelcome to the person, if a reasonable person would be offended, humiliated or intimidated by the conduct. The fact that a person may have taken part in similar conduct does not mean that such conduct towards them will be welcome, and does not preclude a breach of the law on sexual harassment. It is therefore important for managers to ensure that conduct such as sexual banter is such that it would not offend, humiliate or intimidate reasonable people. Horman v Distribution Group, Federal Magistrates Court of Australia, date of decision: 19 December 2001 Sexual harassment – NSW Police Service found vicariously liable for sexual harassment The NSW Police Service was found vicariously liable for sexual harassment because it did not take all the steps required to deal with the case and educate employees and managers about the issue. When the female employee made the initial complaint, her supervisor told the man in question about the allegation but did not tell him that his behaviour was inappropriate. The supervisor reported the complaint to an Inspector who then circulated a memo saying that sexual harassment would not be tolerated. The conduct later resumed, and the Inspector spoke to the man again. When the man continued his behaviour, the woman made another complaint and the matter was referred to a detective, who found that there wasn’t enough evidence to substantiate a complaint. The Inspector later told the woman her complaint had been investigated and the man had been required to sign an agreement about his behaviour. The Administrative Decisions Tribunal said the police had taken the woman’s complaints seriously and acted quickly on them. However, it found that the Service had not taken all reasonable steps to prevent sexual harassment, as the memo sent by the Inspector did not explain what constituted sexual harassment, staff had not been trained in issues of sexual harassment in the workplace, and the man thought his behaviour was normal and part of the workplace culture. The woman was awarded $20,000 in damages, plus some of her costs. Dee v Commissioner of Police,NSW Police and Anor (No 2) [2004] NSWADT 168 (16 August 2004) Sexual harassment - male apprentice sexually harassed and bullied The NSW Administrative Decisions Tribunal awarded a 16 year old apprentice electrician damages for sexual harassment after hearing that his supervisor had touched the male apprentice on the scrotum and repeatedly asked him to “give him head”. The Tribunal’s full bench said the supervisor’s conduct was unwelcome, and accepted that the apprentice had complained and had lashed out and kicked the supervisor when touched on the scrotum. The apprentice was also deliberately burnt on the neck with a cigarette lighter and had a cigarette stubbed out on his arm. The Tribunal also found that the supervisor called him names such as ‘homosexual’, and ‘ball licker’ and that this amounted to conduct of a sexual nature within the terms of the provisions of section 22A(b) of the NSW Anti-Discrimination Act. The apprentice resigned two months after he started employment when the supervisor allegedly threw a lit cigarette into his eye. The harassment by the supervisor led to the apprentice becoming depressed and developing a post traumatic stress disorder. The bench ordered the supervisor to pay the former apprentice $10,000 in general damages and $5,286 in special damages. The employee settled his claim against his former employer prior to hearing. Gabryelczyk v Hundt [2005] NSWADT 94 (3 May 2005) Sexual harrassment - Railcorp's inadequate investigation of sexual harassment The NSW Administrative Decisions Tribunal has found that Railcorp’s approach to dealing with a series of incidents where a female manager was humiliated by graffiti in the men’s toilets and had a pornographic magazine put under her door was fundamentally flawed. Railcorp was found vicariously liable for sexual harassment. The Tribunal found that graffiti in the men’s toilets at the train crew assignment centre was intended to ‘humiliate and harass Ms Hunt by creating an environment in which male staff would see the graffiti that demeaned Ms Hunt’. Railcorp maintained they had investigated and sought to deal with the six graffiti incidents Ms Hunt complained about. This included engaging forensic handwriting experts, regularly checking the toilets, installing closed circuit TVs and applying anti-graffiti paint to the toilet walls. Railcorp also gave evidence that employees at the centre attended briefings on workplace behaviour including discussion of harassment and inappropriate behaviour, Railcorps’s HR policies and the likelihood that harassment would result in dismissal. However, the Tribunal found that, despite Railcorp holding 17 staff briefings they did not involve all employees and were not compulsory. This was a “fundamental flaw” because it meant that some staff, perhaps including those who were least aware of sexual harassment and anti-bullying policies. For Railcorp to assert that it had taken appropriate steps to avoid being vicariously liable for the actions of its employees the Tribunal said that they needed to make sure that that all employees were aware of the policies. The Tribunal found that “while Railcorp did investigate each complaint, its response to the first and second incidents of graffiti was inadequate”. Staff training occurred several months after these incidents and the Tribunal therefore found that Railcorp was vicariously liable for the first two incidents of graffiti. Additionally the Tribunal found that although Railcorp investigated the pornographic magazine incident it “concentrated on trying to identify the culprit at the expense of or to the exclusion of accepting that the actions indicated that more should be done to reinforce the code of conduct and other policies of Railcorp”. Ms Hunt was awarded $20,000 compensation. Hunt v Rail Corporation of NSW [2007] NSW ADT 152 (24 July 2007 Sexual harassment - sacking upheld The Supreme Court of NSW upheld a decision by the NSW Transport Appeals Board. The decision prevents a State Rail Authority employee appealing against his dismissal for sexual harassment. The SRA dismissed a duty manager for breaching its code of workplace standards and its anti-discrimination and harassment policy. He was accused of sexually propositioning a female customer services attendant at a suburban railway station in Sydney. The man challenged the Board’s decision to throw out his appeal. He argued the Board misapplied the law by unreasonably accepting the attendant’s account of harassment, failing to apply the correct standard of proof and disregarding its duty to protect the public interest. Justice Hall found the Board had adequately sought ‘cogent proof in line with what has been termed the Briginshaw test’ which requires consideration of the seriousness and consequences of an allegation when determining its veracity, including the civil standard of proof based on a balance of probabilities. He rejected the other grounds as inadequate or unfounded and dismissed the application. He granted leave to make submissions on costs. Justice Hall said that in determining the reasonableness of the dismissal relevant matters for the employer and the Board included: the employee's statements; the persistent nature of the conduct; the relative vulnerability of the complainant, taking into account the supervisory job occupied by the duty manager; the absence of mitigating circumstances; and the responsibility of the employer to provide a work environment free from sexual harassment in accordance with its code of workplace standards. Duhbihur v. Transport Appeal Board & Anor [2005] NSWSC 811(12 August 2005) Sexual harassment - Navy vicariously liable for sexual assault, harassment and victimisation The Federal Magistrates Court found the Australian Defence Department vicariously liable for the rape, sexual harassment and victimisation of a civilian employee at a naval base. In the judgement Federal Magistrate Michael Conolly found three male Navy officers and the Department liable for unlawful sexual harassment and discrimination. The victim was subjected to extreme sexual harassment over a long period of time. Her rape happened after a dinner party held after hours. The Court found, however, that it was a work related activity as it involved work colleagues and also that the rape was a direct continuation of the workplace harassment. Other breaches of the Human Rights and Equal Opportunity Commission Act and Sex Discrimination Act included unwanted touching, sexual advances, comments and messages, displays of pornography, as well as threats, verbal abuse, bullying and intimidation after the victim made an internal complaint against the perpetrator of the sexual assault. Consequently she suffered post traumatic stress disorder and depression, was unemployed, suffered serious damage to her family relationships and lost interest in recreational pursuits. The Court commented that she might have been able to put a stop to the harassment sooner had she had some equity and diversity training. The investigation into her complaint was described as ‘almost farcical’. Failures in fair grievance handling principles included: supervisors and colleagues tried to force her from her job; she was moved to another position, but still at the army base where she had contact with the perpetrator; she was criticised by her supervisor for poor performance in bringing “personal problems” to work; she was abused and belittled; the assault was not investigated because she chose not to go to the police; when asked to speak to the equity officer privately, her supervisor, a friend of the perpetrator, was told and soon the whole office knew about it; the investigating officer was not properly briefed; she was not told about her rights or the processes involved. Federal Magistrate Conolly ordered that the Government re-employ the woman in another department but declined to order any apology because the three men denied abusing her and it would require an ‘expression of a sentiment not genuinely felt’. He ordered payments of $100,000 plus interest and costs for general damages to compensate for pain suffering and humiliation. Additionally he ordered payments of $232,163 in special damages, $20,259 for past medical expenses, $5000 for future medical expenses and $30,000 for future loss of income. Lee V Smith & Ors [2007] FMCA 59, 23/3/07) Sexual harassment - shop owner sexually harasses under-18 workers The Queensland Anti-Discrimination Tribunal found that Barry John Shearer, proprietor of Palm Valley Sub-News at Mooloolaba, sexually harassed three shop assistants, two of them aged 14 and 15 at the time of the incidents. The Tribunal heard evidence that the propieter had pleaded guilty in other proceedings to unlawful and indecent dealing with the 15-year-old emplyee and was sentenced for that and 16 similar counts to 18 months in prison, which was suspended after nine months. The proprietor did not appear at the Tribunal hearing. ADTQ Member Gerard Mullins accepted that the proprietor had engaged in conduct that included patting and grabbing the women on the bottom, touching their breasts, hugging them, suggesting that he could take nude photos of them and showing them pornographic pictures. The Tribunal partly relied on statements the minors made to the police about the incidents. Member Mullins ordered Shearer to pay the women $24,437, $23,305 and $21,819 respectively, plus costs. The damages included amounts to compensate each of them for being significantly underpaid in comparison with award rates of pay. Dale, Larkin and Loffler v Shearer and another [2006] QADT 1 (16 January 2006) Sexual harassment - Vicarious liability for sexual harassment against a receptionist This case was a successful complaint of sexual harassment lodged by a receptionist/bartender against her employer. The case involved three separate incidents of sexual harassment by a male bartender, who was not named as a respondent to the proceedings before the Tribunal. The employer was found vicariously liable for the actions of its employee. The complainant had been employed by the Richmond Club from January 1998 to May 2000. During this time she experienced a series of incidents of sexual harassment by the male co-worker, some of which were witnessed by club staff. These included the bartender touching her nipples while she was carrying a tray of glasses, grabbing her breasts and shaking them, also while she was carrying a tray of glasses, and finally, a few months later, stroking her arm and making inappropriate sexual comments while she was talking on the phone. After the second incident, the complainant spoke to the bartender, reprimanding him for his behaviour and warning him not to act in the same way again. The bartender apologised, admitted the inappropriateness of his actions and that he had ‘overstepp[ed] the mark’. At that point the complainant assumed the matter had been dealt with. After the third incident, the complainant spoke to her supervisors, informing them of the bartender’s behaviour. The supervisors wrote a report detailing the incidents, which was passed to club’s management. A meeting was then held with the bartender, who admitted to the behaviour, which he said was meant ‘in jest’. The bartender was subsequently dismissed from employment with the club. The Tribunal found that the bartender sexually harassed the complainant and that the Richmond Club was vicariously liable for the sexual harassment of the complainant, as the club had effectively permitted the conditions under which the harassment occurred. Although the club had been formally unaware of the bartender’s actual conduct towards the complainant, it was established that three club managers had been aware of his ‘usual flirtatious conduct’ towards female colleagues, and that the club had not taken appropriate steps to avoid the situations from occurring. The Tribunal found that although the club had responded quickly to the formal complaint in dismissing the employee after he admitted his behaviour, it lacked adequate procedures for the prevention of workplace harassment and had not provided satisfactory training to allow managers and staff to recognise their responsibilities. Specifically, the Tribunal found that none of the managers seemed to recognise the potential ramifications of the harasser’s conduct. The managers should have been trained to recognise and take action in relation to such conduct. The Tribunal awarded the complainant $15,000 in damages. Caton v Richmond Club Ltd, Administrative Decisions Tribunal, [2003] NSWADT 202 Transgender Transgender discrimination in employment The complainant alleged that Mr Ron Foley, managing director of the respondent company, discriminated against her because of her transgender status when she sought employment agency services. She alleged that Mr Foley did not follow his usual practice and failed to put forward her name to the person who was responsible for placing people with clients of the respondent. After a period of time waiting for the respondent to contact her, Ms Farmer sought a referral to a specific position being advertised by the respondent. Mr Foley advised the complainant that the employers wanted a woman. When Ms Farmer reminded the respondent that she was now a woman, Mr Foley responded by saying that the flexible working conditions reflected the employer's desire for a woman with children. When pushed by the complainant, he added that the employer wanted a "vanilla woman". Mr Foley claimed this term was used to describe a woman "with no complications". Ms Farmer considered this to be a reference either to homosexuality or to the sexual practices of bondage/discipline and/or sadomasochism. The Tribunal found that Ms Farmer satisfied the definition of transgender and that Mr Foley was aware at the relevant time that Ms Farmer was a transgender person. The Tribunal was satisfied that Mr Foley did not take any action to place Ms Farmer in any position. He did not seek a reference from Ms Farmer's former employer, did not process her application and did not forward her application to one of his consultants. The Tribunal also concluded that Mr Foley's reference to a vanilla woman was a reference to the client's transgender status. The respondent's failure to action the complainant's application, combined with his insensitive approach to the complainant, demonstrated that he had treated her less favourably than he would have treated a person who was not transgender in the same or similar position. The Tribunal referred to submissions it had received in the context of another complaint by Ms Farmer: Farmer v Jan James Recruiting Pty Ltd, which was not substantiated. In that matter, the respondent argued that there was no breach of s.38J(a), as the agency was providing a service to the client employer, but was not providing a service to the individual applicant. The Tribunal was not convinced, and even putting this argument in its best form for the respondent, was still prepared to accept that the agency was providing a service to the applicant as well as providing a service to the client employers. Mr Foley had undertaken to get back to the complainant after checking with her most recent employer. In doing so, he undertook to provide her with a service and by implication undertook to continue providing her with a service subject to receiving a favourable reference. The respondent failed to provide the service. The Tribunal awarded the complainant $6,000 for stress and humiliation. As she had not produced evidence of economic loss, no award for such a loss could be made. Farmer v Dorena Pty Ltd, Administrative Decisions Tribunal, date of decision: 17 May 2002 Victiminsation Victimisation relating to a sexual harassment complaint The Administrative Decisions Tribunal found that an employer victimised a female employee by disclosing a list of sexual harassment and sex discrimination claims made by her to a meeting of her colleagues. The complainant was employed by the respondent from 1995 to 2000, when her employment was terminated. During this time, the complainant alleged she experienced 13 incidences in which she was sexually harassed, victimised and discriminated against because of her sex. The incidents included a male colleague throwing a spider in her face, being subjected to pornographic material depicting naked women displayed in the workplace, being told she was unfit for her position because she was a woman and denied opportunities for promotion and variation in her work duties. Other incidents included a co-worker saying ‘Council’s outdoor staff is not a place for women. Women should not be working there’, and ‘You should wear tighter shirts and shorter shorts’. It was alleged her supervisor made discriminatory comments, including ‘A woman’s place is in the home chained to the kitchen’. The Tribunal rejected all of the complainant’s claims of sexual harassment and sex discrimination. Although the some of the treatment may have amounted to ‘some sort of assault’, it did not constitute discrimination on the basis of gender, as the complainant’s claims could not be substantiated. The complainant also alleged she was victimised by her employee and a co-worker after she formally complained about the harassment. Evidence was given that her employer responded to her complaint by commissioning a report on the complaints and calling a meeting of her colleagues. At the meeting, the writer of the report read aloud each of the complainant’s allegations to the assembled group. It was alleged that the meeting was told that ‘money, greed and revenge’ had motivated the complainant. After the complaints were read, the co-workers were asked for provide further information. It was alleged that one worker called out ‘she’s a c…’, and that the comment was written on a white board in large letters. Another employee was alleged to have said, ‘I told her women shouldn’t be working at the depot’. The Tribunal accepted that the complainant was subjected to victimisation as a result of making a claim of sexual harassment, breaching s 50 of the Anti-Discrimination Act 1977 (NSW). It held that the decision to ‘discuss the matter in a group… was a very poor way of conducting any sort of investigation… If the purpose of the meeting was to get to the heart of the matter she raised, the appropriate course would have been to take evidence from the relevant witnesses individually’. The Tribunal awarded the complainant $4,000 in damages for pain and suffering. Denmeade v Kempsey Shire Council & Ors (N0 2), Administrative Decisions Tribunal, [2003] NSWADT Victimisation relating to a complaint lodged with the Human Rights and Equal Opportunity Commission The Federal Magistrates Court found that an employer victimised a former employee when it refused to re-employ him because he had previously complained to HREOC and had threatened to lodge another complaint. The Court ruled that Andreco Hurll Refractory Services Pty Ltd breached provisions of the Federal Disability Discrimination Act by refusing to engage the refractory labourer on a maintenance project at Whyalla in South Australia. The employee had previously worked for the company for about 30 years, working about nine months a year. While working for the company he sustained an injury and ultimately made an unsuccessful disability discrimination complaint to HREOC, claiming that Andreco Hurll terminated his employment because of his injuries and failed to provide him with alternative or light duties. After being declared fit to return to work, the labourer advised Andrecco Hurll he was seeking work. However, the company didn’t offer him any work on the Whyalla job. Federal Magistrate Kenneth Raphael stated that ‘a job could have been found and was not provided’. He went on to say that it was ‘not difficult to infer that one of the reasons was his previous conduct in taking the company to HREOC and this court and his threat to repeat that action’. He ordered the company to pay the worker $5,000 in general damages for the victimisation, compensatory damages for lost earnings (expected to amount to $10,000 to $15,000), plus costs. Drury v Andreco Hurll Refractory Services Pty Ltd (No.4) [2005] FMCA 1226 (30 August 2005) Back to Equal Time

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