AA and RR - [2019] WASAT 141

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   AA and RR [2019] WASAT 141
MEMBER:   MS L EDDY, SENIOR MEMBER
HEARD:   23 SEPTEMBER 2019
DELIVERED          :   30 DECEMBER 2019
FILE NO/S:   EOA 4 of 2019
BETWEEN:   AA
Applicant
AND
RR
Respondent

Catchwords:

Equal opportunity - Direct discrimination and victimisation - Allegation of discrimination in area of work on ground of spent conviction - Whether need to establish intention to cause detriment for victimisation claim - Direct discrimination claim substantiated - Whether refusal to accept offer to re-engage complainant reasonable in circumstances

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 67(1)(a), s 67(1)(b), s 83, s 84, s 93(1), s 93(1)(b), s 93(2), s 93(3), s 107, s 137
Sentencing Act 1995(WA), s 38(2)(b)
Spent Convictions Act 1988 (WA), s 3, s 17, s 17(2), s 18
State Administrative Tribunal Act 2004 (WA), s 15(1), Pt 4

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	Mr J Rosales-Castaneda
Respondent	:	N/A

Solicitors:

Applicant	:	Equal Opportunity Commission
Respondent	:	N/A

Case(s) referred to in decision(s):

Ley and Director General of the Department of Education [2019] WASAT 130

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, whose name has been suppressed by order of the Tribunal, will be referred to as AA. The respondent, who cannot be identified in these reasons in order to prevent any inadvertent identification of AA, will be referred to as RR.
AA worked for RR as an office cleaner for a number of years. In June 2018, AA was charged with several counts of possession of drugs offences. In late August 2018, the Managing Director of RR, MD, telephoned AA and told her that he had received an anonymous tip that AA had been charged with some offences. AA confirmed to MD that she had been charged. MD advised AA that she was suspended from work until the outcome of the charges was known.
AA pleaded guilty and was given spent convictions in relation to all of the offences. MD was informed by AA of her spent convictions. On 14 January 2019, MD advised AA that she would no longer be engaged by RR for her cleaning services.
On 17 January 2019, AA lodged a claim with the Equal Opportunity Commissioner (Commissioner) alleging that RR had discriminated against her in the area of work on the ground of her spent convictions. The Commissioner informed RR of the complaint made by AA and following that notification, MD sent two text messages to AA. AA alleges that these text messages amount to victimisation by MD against her. On 4 April 2019, AA lodged a claim of victimisation against RR.
On 3 May 2019, the Commissioner referred AA's complaints to the Tribunal under s 93(1)(b) of the Equal Opportunity Act 1984 (WA) (EO Act).
AA alleges that RR, through MD, treated her less favourably than a person who had never incurred spent convictions by not allowing her to return to work after she had informed MD that she had been granted spent convictions, in breach of s 17(2) and s 18(2)(c) ‑ (d) of the Spent Convictions Act 1988 (WA) (SC Act). She also alleges that RR, through MD, victimised her by sending her insulting and threatening text messages after becoming aware that she had made a complaint to the Commissioner about RR's treatment of her, contrary to s 67(1)(a) or (b) of the EO Act.

The law

Sections 17 and 18 of the SC Act provide:
Terms used
(1)In this Division commission agent, committee of management, contract worker, employment, employment agency and principal have the respective meanings assigned to them by the Equal Opportunity Act 1984.
(2)For the purposes of this Division, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of a spent conviction if ‑
(a)on the ground of that conviction or the charge to which it relates, the discriminator treats the aggrieved person less favourably than, in the same circumstances or in circumstances that are not materially different, the discriminator treats or would treat a person who had never incurred a conviction; or
(b)the discriminator requires the aggrieved person to comply with a requirement or condition that is not reasonable having regard to the circumstances of the case.
Job applicants and employees, discrimination against
(1)It is unlawful for an employer to discriminate against a person on the ground of a spent conviction of the person ‑
(a)in the arrangements made for the purpose of determining who should be offered employment; or
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of a spent conviction of the employee ‑
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
The term 'spent conviction' is defined in s 3 of the SC Act as:
… a conviction that is spent under section 6, 7 or 8 or that is spent by virtue of a spent conviction order made under section 39 of the Sentencing Act 1995.
Section 39(2)(b) of the Sentencing Act 1995 (WA) provides:
(2)Subject to sections 41 to 45, a court sentencing an offender may ‑
(b)with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender[.]
Section 24 of the SC Act provides:
(1)Where it is alleged that a contravention of this Division has occurred, a complaint may be lodged under section 83(1) or (2) of the Equal Opportunity Act 1984 as if the alleged contravention were a contravention of that Act, and the provisions of that Act shall apply accordingly.
(2)A contravention of this Division shall not attract any sanction or consequence, whether criminal or civil, except as provided in subsection (1).
(3)Nothing in subsection (2) prevents an action for defamation.
I recently outlined the law in relation to an allegation of direct discrimination, which AA's allegation in this matter is, in the decision of Ley and Director General of the Department of Education [2019] WASAT 130, at [9] ‑ [22], so I do not repeat that material here. The Tribunal is mindful of the principles there summarised and applies them in this matter also.
A complaint alleging that a person has committed a contravention of the EO Act may be lodged in writing with the Commissioner by a person on the persons' own behalf: s 83(1)(a) of the EO Act. Such a complaint must be lodged within 12 months after the date on which the contravention of the EO Act is alleged to have been committed, unless the Commissioner decides to accept a complaint lodged more than 12 months: s 83(4) ‑ (5) of the EO Act. The Commissioner must investigate a complaint lodged with him under s 83 of the EO Act: s 84 of the EO Act. Where the Commissioner is of the opinion that a complaint cannot be resolved by conciliation, or the Commissioner has endeavoured to resolve the complaint by conciliation but has not been successful, he must refer the complaint the Tribunal: s 93(1) of the EO Act.
Section 67 of the EO Act provides:
Victimisation
(1)It is unlawful for a person (in this section referred to as the victimiser) to subject, or threaten to subject, another person (in this subsection referred to as the person victimised) to any detriment on the ground that the person victimised
(a)has made, or proposes to make, a complaint under this Act; or
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act; or
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act; or
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act; or
(e)has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or
(f)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC,
or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
(2)Subsection (1)(f) does not apply if it is proved that the allegation was false and was not made in good faith.
(3)Subject to subsection (2), the application or continued application of subsection (1) in a particular case shall not be affected by ‑
(a)the failure of the person victimised to do any proposed act or thing referred to in any of the paragraphs of subsection (1); or
(b)the withdrawal, failure to pursue, or determination of any complaint, proceeding or allegation under this Act.
Except in circumstances not relevant to this matter, the Tribunal must hold an inquiry into each complaint or matter referred to it under s 93(1): s 93(3) of the EO Act. The Tribunal's powers after holding an inquiry are specified in s 127 of the EO Act, which provides:
Decisions of Tribunal
After holding an inquiry, the Tribunal may ‑
(a)dismiss the complaint that is the subject of the inquiry; or
(b)find the complaint substantiated and do any one or more of the following ‑
(i)except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to pay to the complainant damages not exceeding $40 000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct; or
(ii)make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act; or
(iii)except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; or
(iv)make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act; or
(v)decline to take any further action in the matter.
The term 'inquiry' is unhelpfully defined in s 4 of the EO Act as meaning 'an inquiry referred to in section 107'. The Tribunal has not been able to find any case law that discussed the meaning of this term as used in the EO Act. The ordinary meaning of the term, as defined in the Macquarie Dictionary Online (2019) is:
noun (plural inquiries)
1.an investigation, as into a matter.
2.the act of inquiring, or seeking information by questioning; interrogation.
3.a question; query.
–phrase 4. make inquiry (or inquiries), to request information: to make inquiries at the office.
A referral by the Commissioner of a complaint to the Tribunal pursuant to s 93(1) of the EO Act does not involve a review of a decision; it comes within the Tribunal's original jurisdiction: s 15(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In exercising original jurisdiction, the Tribunal is to deal with a mater in accordance with the SAT Act and the enabling Act, in this case the SC Act and the EO Act. Without going into unnecessary detail, in summary, the Tribunal's procedures are specified in Pt 4 of the SAT Act. Accordingly, the Tribunal made orders requiring the parties to provide Statements of Issues Facts and Contentions and any relevant documents and to lodge witness statements for any person being called to give evidence. The Tribunal assisted MD, who represented RR throughout the proceedings, to understand the Tribunal's processes and how to participate in the final hearing, which constituted the Tribunal's 'inquiry' for the purposes of s 107 of the EO Act.
In Laurent and Commissioner of Police [2009] WASAT 254, at [67] ‑ [68] the Tribunal summarised the law in relation to victimisation as follows:
In considering whether the allegations of discrimination in the third SIFC are so obviously untenable that they cannot possibly succeed or are manifestly groundless, I have borne in mind what is required to be established in order to make out a claim of discrimination under s 66A of the EO Act. I referred to these matters earlier in these reasons. In assessing Mr Laurent's allegations of victimisation under s 67 of the EO Act, I have borne in mind that in order to establish victimisation under s 67, it must be established that:
1)the person victimised suffered, or was threatened with, a detriment;
2)the detriment alleged must be a disadvantage that is substantial and not trivial;
3)the victimiser subjected the person victimised with the detriment, or threatened to do so;
4)a dominant or substantial reason for the victimiser's conduct was that the person victimised has made or proposes to make a complaint under the EO Act, or has brought or proposes to bring, proceedings against the victimiser under the EO Act (or one of the other grounds for victimisation in s 67(1)). That is, it must be established that:
•the complaint, or intended complaint, must be the dominant or substantial reason for doing the act of victimisation;
•there must be an intention to cause detriment; and
•there must be a causal link between the conduct of the victimiser and the detriment suffered. In the absence of facts capable of proving intention to cause the detriment, or facts capable of supporting such an inference, there will be no basis for a contention of victimisation.
See Regan and Kalgoorlie Taxi Car Owners Association Incorporated (1996) EOC 9844 (WA, EOT), referred to with approval in Williams and Commissioner of Police [2005] WASAT 349 at [144]; and see also Soelberg and Commissioner of Police [2008] WASAT 305 at [83]; and Hautlieu Pty Ltd t/as Russell Pathology v McIntosh [2000] WASCA 146 at [140], [168] [170].
However, the comments in point four of the above cited passage no longer seems to be supported by contemporary authorities, at least in part. The Federal Court in Obieta v New South Wales Department of Education and Training [2007] FCA 86 at [240] cited Bailey v Australian National University (1995) EOC 92-744 as the basis for stating that 'for victimisation to be established under comparable legislation one of the grounds under a section comparable to s 94(2) of the SDA must be a "substantial and operative" factor for the alleged action'. The New South Wales Appeal Panel, in Nicholls and Nicholls v Director General, Department of Education and Training(No 2) [2009] NSWADTAP 20, at [33] [37] reviewed the case law on this point and made the following conclusions:
33In our view, Buchanan J's observation that the ground or reason 'must afford a rational explanation, at least in part, "why" an action was taken' is correct. The formulation of the test in that way is consistent with the High Court's formulation of the test for causation in discrimination complaints in Purvis. However, by requiring that the reason must be 'substantial' Buchanan J formulated a different test from that in discrimination complaints. The point of difference is that even if a reason was one of the grounds for imposing the detriment, a victimisation complaint will not be substantiated unless that reason is a 'substantial' reason.
34The decision of the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99 made it clear, even before the enactment of s 4A, that any reason which contributed, even in part, to the ultimate treatment or conduct, should be regarded as a reason for the purposes of determining whether there has been a contravention of the legislation. Clarke JA (with whom Kirby J and Hope JA agreed) expressed that view in the following way at p 106:
In the event, however, that the Tribunal decides that there are two grounds for the action or decision one which does and one which does not fall within s 39(1) then, as it seems to me, a case of discrimination on the ground of marital status will have been made out. That is because less favourable treatment was accorded on the ground, amongst others, of, for example marital status. The fact that there was another ground for the discriminatory action is, in this context, of no importance. Once there is a finding that marital status was a ground of the discriminatory action then it follows that 'on the ground of marital status' A treated B less favourably.
35In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92808 (Shaikh), at 78,986, the Tribunal said that:
We note that s 4A does not impact on the victimisation provision, so that the cases dealing with the phrase before this amendment which took effect in 1994 still have relevance to s 50(1). We adopt the phrase 'an operative ground' referred to by Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99 at 105 as a practical test for the application of this element of the statutory provision. We keep in mind the exhortation of the judge to the Tribunal in that case to focus on the search for the 'real ground', not forgetting the possibility that there may be more than one ground in the decision under scrutiny.
36The test set out by the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99 and applied by the Tribunal in Shaikh is essentially the same test that the High Court enunciated more recently in Purvis. That fact supports our view that s 4A is an explanatory provision which does not give the words 'on the ground of' an extended meaning beyond their ordinary meaning. Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.
37Conclusion. Throughout its reasons, the Tribunal applied the 'but for' test and/or the substantial, dominant or main reason test. As we see it, the application of those tests constituted an error. The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. It remains for us to consider whether the Tribunal's formulation and application of the test led it to make findings it would not or might not have made had it applied the correct test: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ.
Here in Western Australia, the case law suggests that victimisation cannot be established 'in the absence of any facts capable of providing intention to cause the determent, or facts capable of supporting such an inference': Soelberg (Formerly Van Droffelaarr) and Commissioner of Police [2008] WASAT 305 at [86], apparently in reliance on the reasoning in Hautlieu Pty Ltd t/a Russell Pathology v McIntosh [2000] WASCA 146 at [143] (Hautlieu). This is different to the approach taken in New South Wales, where it is considered that it is not necessary to establish an intention to cause detriment: see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at 78,986; Mitchell v Clayton Utz & Ors [2009] NSWADT 266 at [65]. The decision in Hautlieu was considered in Tropoulos v Journey Lawyers Pty Ltd [2019]FCA436 at [325], but that consideration involved only the issue of it being necessary for the detriment to be a matter of substance, and not the intention issue. In the circumstances, I consider that I am required to follow Hautlieu, and therefore it is necessary for AA to establish that RR, through MD, intended to cause AA detriment in order for the Tribunal to find that AA was victimised.

Whether or not a person has suffered a detriment is determined objectively: Sivananthan v Commission of Police, New South Wales Police Service [2001] NSWADT 44, at [41].

The evidence and findings of fact

AA's evidence

AA started working for RR as an 'office keeper' in March 2014. She was employed at an hourly rate of $23 per hour on a full time basis of 37.5 hours per week. AA did not recall signing any written contract. She was told she was required to provide MD with a police clearance certificate, however she did not initially provide one as she could not afford the cost involved. AA said she did not ever end up providing a police clearance certificate and MD did not raise it as an issue with her. In any event, AA did not at that time have any criminal convictions; she only had been convicted of one driving offence.
AA's hours were flexible, but she would do two shifts per day, the first one starting around 4 am in the morning and finishing by 10 am and then the second shift starting at approximately 5:30 pm and finishing about 7:30 pm. During cross-examination, it was put to AA that in fact she worked mostly in the early hours of the morning and she was shown a document that recorded the times AA entered and left the building and emails sent by her with time stamps on them. AA accepted that later in her employment she had changed her hours to always working outside of business hours. AA responded to the suggestion that she had lied about the hours she worked in her witness statement by stating that the hours she had referred to in her witness statement were the hours she worked when she originally started but these changed over time.
AA also carried out some other cleaning jobs for cash payment and also made artistic items to sell in order to supplement her income.
In March 2015, RR sent an email to all employees advising that the company's expenses need to be reduced and that a re-structure process would be commenced. Three employees were made redundant. In May 2015, RR's Administration and Human Resources officer, who will referred to as HR, spoke to AA and told her that the cleaning expenses needed to be reduced. HR told AA that it was proposed to cut her hours to 20 hours per week, but to offset the loss to AA's income, RR would pay AA $30 per hour as an independent contractor. HR advised AA that she could assist her to obtain an Australian Business Number (ABN) and that AA would be responsible for her own tax: Exhibit 5, at para 16. In cross-examination, it was put to AA that she did not need to obtain an ABN at this time because she already had one. AA accepted that proposition. It was put to AA that she had lied about this fact in her evidence and her reply was words to the effect that: 'no, I said they offered to get me one but I already had one'.
AA agreed to the proposal to work as an independent contractor. Again, AA did not sign any written contract. Shortly after this arrangement commenced, AA advised RR that she wanted more hours and RR agreed to increase AA's hours to 24 hours a week, and eventually 25 hours per week. When working 25 hours, AA was being paid $750 per week.
In 2017, AA had further negotiations with MD in relation to the money she was earning. As part of those discussions MD offered to take AA back as an employee at $23 per hour for 25 hours per week. After further negotiations MD offered AA employment on the basis of $25 per hour for 25 hours per week. This would mean that AA would be paid $625 gross per week. AA asked if she could stay as a contractor and have her hourly rate increased to $31 per hour, which was accepted. Her weekly income was then $775 per week.
AA was aware that she was required to pay her own tax, but she did not do so. She said that she was not able to pay her taxes and survive financially. AA currently has a debt payable to the Australian Taxation Office.
In 2017, AA started socialising with two friends F1 and F2. The three friends took drugs at times, which AA described as 'recreationally': Exhibit 5 at para 35. The three friends would often gather at AA's house. As a result, AA had drugs and drug paraphernalia in her house. AA said she never took drugs on working days or at RR's premises.
On 2 June 2019, police attended at AA's house with a warrant to search the premises and her car. AA told them where the drugs were located in her house. AA was charged with possession of several drugs and with possession with intent to sell methamphetamine. AA, having received legal advice, decided to plead guilty to the charges at the earliest opportunity and request spent conviction orders.
The charges unsettled AA and she decided to get counselling from Holyoake to help her deal with her drug use. She also thought that being able to show that she was, of her own initiative, seeking remedial action in relation to her drug taking this would assist her to obtain spent convictions.
Initially, AA did not tell MD, or anyone else at RR, about the charges that had been laid against her. She considered that they had no impact on her job and if she was successful in her request for a spent convictions, she would not have to reveal those convictions to RR. However, on 29 August 2018, AA received a telephone call from MD. MD told AA that he had been informed that AA may have criminal charges pending against her. AA admitted to the truth of that information. MD told AA that '[b]ecause of the nature of our insurance policy I'll have to suspend your contract until after your hearing': Exhibit 5 at para 42. MD advised AA that if she was found not guilty she would be able to come back to work at RR's premises. In response, AA told MD that she would be pleading guilty to the charges but that she would be requesting a spent conviction orders. After AA explained to MD what that meant, MD told AA that he thought she would be able to return to work. AA asked MD to write a reference for her to assist her in obtaining spent conviction orders, and MD agreed.
On 10 September 2018, AA attended Court with her lawyer and pleaded guilty to the charges against her. The Court granted AA's request for spent conviction orders: Exhibit 3, at 21-22.
On 11 September 2018, AA emailed MD to advise him that she had been granted spent conviction orders: Exhibit 3, at 26. She also advised MD that she had been given a community based order and was required to attend a community corrections centre and possibly would have to undertake drug testing. AA asked MD if she could return to work.
MD replied the following day be email, asking AA to come and meet him the following week to discuss her job: Exhibit 3, at 27. AA went to see MD at RR's premises on 18 September 2018. MD told AA that he wanted to have her back but that he wanted a little time to discuss it with other people at RR because he did not want to appear foolish.
Following their meeting, AA did not hear from MD for some time. On 30 September AA sent an email to MD asking whether he had made any decision in relation to her returning to work: Exhibit 3, at 30. MD replied to AA by email on 8 October 2018 indicating that:
…
Thank you for visiting and discussing the prospect of returning to work at [RR].
I would like to get you back here since you always do such a good job and working with you is always a pleasure. However, after careful consideration and confidential discussions with senior management we would prefer to maintain contact with you and defer our decision for 6 months.
In that time I would be willing to provide a reference to any prospective new employer vouching for the high quality of your work and your conscientious approach.
I am sorry that his may not be the news you want to hear and hope that we do stay in contact and remain friends. Please do not hesistate to contact me if you would like [to] talk about anything at any time.
I look forward to staying in contact with you[.]
AA replied to MD's email and attempted to persuade him that he should let her come back to work as she had been a good and loyal employee and that RR was not allowed to discriminate against her on the basis of her spent convictions: Exhibit 3, at 31-33.
On 16 October 2018 AA sent another email to MD questioning his reasons for delaying her recommencing working for RR: Exhibit 3, at 34. On the same day, MD responded to AA by providing her with a draft reference letter: Exhibit 3, at 34. There followed some further email communications that day and in the following days in relation to the written reference. There was also some discussion about MD's offer to keep in touch and potentially offer AA work at RR again in approximately six months' time. MD confirmed that he would be prepared to meet AA again for coffee.
On 13 January 2019, AA sent another email to MD asking about the prospect of her returning to work at RR. On 14 January 2019, MD replied indicating that he had thought AA did not want to meet with him as she had not replied to his offer to meet. MD also said 'I am sorry that you have not comprehended why we could not continue to engage you': Exhibit 3, at 38. AA responded to MD by asserting that she had replied to MD's previous email and that she still did not understand why RR was not allowing AA to recommence her work at RR. On 15 January 2019, MD responded as follows:
I am sorry if there has been some misunderstanding AA
We are not prepared to re-engage you unfortunately.
(Exhibit 3, at 39)
Following this, AA lodged a complaint with the Commissioner on 17 January 2019. On 29 January AA was told by an officer at the Commissioner's Office that her complaint and statement had been sent to RR.
On 4 February 2019, AA received two text messages from MD. The text messages said:
So you were using dangerous illegal drugs during your time as our cleaner without telling me (that accounts for your strange behaviour), you were arrested and charged for possessing a commercial quantity of dangerous illegal drugs without telling me, you were convicted of serious drug offences and now you are demanding a large sum of money from me [AA]. Drugs have clearly affected your judgement. Please consider the references I provided to you withdrawn. I urge you to withdraw your EOC claim that adds insult to injury.
If you do not come to your senses and withdraw your claim I will write to the Court and inform the Magistrate that I regret the reference I sent that undoubtedly saved you from imprisonment or a much heavier penalty [AA]. You knew from our employment contract that a criminal conviction would result in termination of employment. Please reconsider your position and stop making life difficult for your loyal past employer.

MD's evidence

MD represented himself and RR throughout the proceedings and did not seem to have had the benefit of any legal advice. The Tribunal tried to assist MD in understanding and navigating the hearing process, but he clearly struggled with it very much. MD did not produce a witness statement prior to the hearing, but the Tribunal accepted those parts of RR's Statement of Issues Facts and Contentions that contained facts to be MD's witness statement. He also gave oral evidence at the hearing. AA's representative did not object to any of this occurring and did not wish to have an adjournment of the hearing.
MD agreed that AA was initially employed to work at RR on a full time basis for 37.5 hours per week; increasing up to 40 hours after AA claimed that the workload required more hours. When AA's hours were subsequently reduced to 20 hours per week, and later changed to 25 hours per week, MD said it was evident that the job only required 25 hours per week.
MD said as AA also said, that in May 2015 RR informed AA that the company could not afford to spend as much on cleaning and must reduce her hours to 20 per week. AA complained that she could not afford a reduction in her income and advised that she would accept $30 per hour for 20 hours per week and invoice RR for her services accordingly. MD said that AA said that she had operated a registered business with an Australian Business Number and was providing services to another customer. AA knew that the increase in hourly rate to $30 per hour (from $23 per hour) included payment for leave and superannuation entitlements and that she would have to manage her own income tax and superannuation contributions. MD said RR offered AA the choice of continuing as an employee at $23 per hour, or being paid as a contractor at $30 per hour. AA chose the latter option.
MD received a printout of Court listings that listed AA's name and the charges of 'Possessed drug paraphernalia in or on which there was prohibited drug or plant' x 2, 'Possess a Prohibited Drug (Cannabis), 'Possessed a prohibited drug', 'Possess a prohibited drug, namely dexamphetamine', 'Possess a prohibited drug (MDMA)' and 'Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine': Exhibit 7, at 2/2-2/3. He received this document by mail and telephoned AA on the same day he received the document. MD described this telephone call as being of approximately five minutes duration. AA told MD that she had been caught with drugs; that she was using drugs. MD described AA as being irate that someone had sent the information to MD about the charges.
MD said that RR suspended AA when he learned that she was 'using and in possession of a commercial quantity of dangerous illegal drugs during the period she was engaged to provide services to [RR]': Exhibit 6, at para 1. In cross-examination, MD said that he told AA he was suspending her because of RR's insurance policy and that was one reason, but he also considered that it was not right to continue to employ her under the circumstances.
It was put to MD that AA told him that she had stopped taking drugs and MD did not recall exactly what AA had said. MD said if AA had said she had stopped taking drugs he would not have believed her, or indeed anyone who made such a claim in the circumstances. It was also put to MD that AA told him about seeking spent conviction orders. MD accepted that AA may have told him that but said words to the effect that 'the horse had bolted'. MD said he understood, incorrectly, that a spent conviction meant that after AA was convicted, after a period of her showing that AA was no longer taking drugs and was doing the right thing, she would then get the benefit of a spent conviction. MD agreed that AA told him that she had obtained spent convictions after she had pleaded guilty to the charges when AA and MD met at RR's premises. He did not recall AA asking for her job back at that meeting. His recollection of the discussion was that AA gave him an account of what had happened; that the Court had made spent conviction orders. MD said he was hoping, during that meeting, that AA would not expect future employment with RR, although he said this was not discussed at that meeting.
MD said that it was RR's policy to suspend any employee or contractor who was using illegal drugs when employed or engaged to provide services to RR, regardless of any criminal charges, convictions or spent convictions. In cross-examination, MD admitted that there was no written policy that was distributed to staff about the consequences of using illegal drugs. He also admitted that employees were not told about this policy in their induction. MD relied on the fact that the employment agreement that RR had created in January 2015 contained a provision that provides for termination of employment if an employee is, relevantly to this matter, charged with a criminal offence which would bring RR into disrepute or if an employee is found to be in possession of illegal drugs or under the influence of illegal drugs or alcohol during work hours: Exhibit 3, at 14.
MD said that he thought that the fact AA worked between the hours of 1 am and 4 am when she was not required to work these hours was suspicious. Although he did not have any suspicions that AA was using illegal drugs before he received the tip-off about her, after that time he came to the view that she might have been under the influence of illegal drugs while at work and the hours she worked was one of the factors that lead him to form this view.
MD said AA told him, during their telephone call on 29 August 2018, she had enrolled in the Holyoake program because it was likely to reduce her sentence. He also said that AA did not offer to provide any evidence that she was no longer using illegal drugs.
MD agreed with AA that he met with her at RR's premises, although he did not identify the date that he thought this had occurred. He denied saying that he did not want to appear foolish. MD said he was reluctant to re-engage AA because of her use of illegal drugs and her dishonesty in hiding the 'facts of the case' from RR: Exhibit 6, at para 26. MD was considering re-engaging AA after a time, during which he thought he would meet with AA and assess whether she had stopped using illegal drugs, but did not at any time promise AA that she could return to work at RR. MD said that in his view, the drugs AA had admitted to using are seriously addictive drugs, in particular methylamphetamine. He was thinking that he wanted to see evidence that AA was no longer taking drugs before he would consider taking her back to work at RR's premises.
MD said that when he met with AA, she told him she was still socialising with the same people she had been taking drugs with. MD told AA that she had to stop socialising with them if she was going to be able to stop taking illegal drugs. MD wanted to wait at least six months before he considered taking AA back to work at RR's premises because he wanted to be convinced that AA was no longer taking illegal drugs. He had hoped that if they stayed in touch he would be able to see how AA was coping and make a judgment call about whether he thought AA was still taking illegal drugs. Ultimately, however, MD had hoped that AA would get another job and he would not have to consider whether to take her back.
MD said another reason why he did not want AA to return to work at RR was that he was concerned about her safety if she continued to work alone after hours in RR's building. In RR's first response to the Commissioner, in February 2019, MD stated that since AA worked alone on the premises between the hours of 8 pm and 6 am, and had declined an offer of work when other staff would be present at RR's premises, he determined that it was an occupational safety and health risk to engage AA as she may still be using illegal drugs. MD said that the use of illegal drugs 'often leads to ill health and accidents': Exhibit 7, at 3/1. MD advised the Commissioner, in February 2019, that AA had told him that 'her unsavoury ex-boyfriend was out to get her': Exhibit 7, at 3/6. He said this was a factor in his concern for AA's safety working alone late at night. In an email to MD, AA said that she has feelings of fear because of 'someone I called a close friend all of a sudden becoming someone who is essentially stalking, threatening and harassing me': Exhibit3, at 24.
MD maintained during cross-examination that the reason he suspended AA and did not re-engage her was because AA had been taking illegal drugs and not because of her spent convictions
When MD sent the email to AA on 15 January 2019, he was under the impression that AA was asking to come back straight away, rather than waiting the six months he had suggested, and his answer that RR would not re-engage AA was answering the suggestion that AA wanted to be re-engaged at that point in time.
When he sent AA the text messages on 4 February 2019, MD was very concerned and distressed by AA's allegations. He said he regretted sending them and apologised for his words: Exhibit 6, at para 3. MD said he did not wish or intend to hurt or insult AA by sending the text messages and he had not taken any steps to withdraw any references provided in relation to AA. MD said he was expressing his anguish at what she was doing to him and RR. MD told the Commissioner that he did not intend to intimidate AA with the text messages he sent. From his perspective, the text messages were 'a plea for her to come to her senses and withdraw her complaint to the EOC and her claim for a substantial case payment': Exhibit 7, at ¾.

MD offered to re-engage AA in February 2019 on 'exactly the same terms and conditions as previously' but AA did not accept that offer: Exhibit 6, at para 2. MD said that he offered AA her job back after she spoke to someone at the Commissioner's office, who told MD that she thought it appeared that he may have broken the law. On that basis MD offered AA her job back. MD confirmed to the Commissioner, in February 2019, that RR was genuine in its offer to reengage AA, although for health and safety purposes she would need to work during normal office hours.

Discrimination claim

The Tribunal noted that AA's evidence was carefully crafted to present her as an innocent being taken advantage of in negotiations with various people at RR in relation to her employment and the later contract arrangement. Her answers to cross-examination questions were at times evasive and appeared to be carefully crafted to present herself in her best light. For example, AA's witness statement appears to suggest that HR told her things that she did not previously know about being an independent contractor, and the failure to mention that she already had an ABN (which she admitted in cross-examination) came across as evasive and self-serving. Another example is AA's careful reciting of the hours she worked at RR's premises in her witness statement, while not giving any indication that these hours had changed over time or what they had changed to. Having said those things, I did not form the impression that AA was being untruthful in her oral evidence. She appeared to be answering truthfully, but carefully so as to present herself in the best possible light.
MD appeared to be genuine and truthful in giving his evidence.
The following matters are not in dispute between the parties and are the subject of substantially the same evidence from both AA and MD. The Tribunal makes the following findings of fact.
AA was at first employed by RR to provide office cleaning services at RR's premises in 2014; she worked full time hours. Initially she worked two shifts, one in the morning and one in the evening. In May 2015, AA was advised that her hours would be cut to 20 hours per week. AA felt this would result in her taking home insufficient pay and she negotiated to work 25 hours per week and to be paid on an independent contractor basis. Her take home pay, gross, was $750 per week. Over time AA's working hours changed, and, at the very least by 2018, and for some time prior, she was working exclusively out of business hours, in the early hours of the morning. This was by her choice.
In 2017, AA started socialising with some people and began taking illegal drugs with them. In June 2019, police attended AA's premises and found a quantity of drugs and drug paraphernalia there. AA was charged with a number of offences. Initially AA did not tell anyone at RR about the offences she had been charged with.
On 29 August 2018, MD received an envelope addressed to him, inside which was a printout of AA's name and a list of the offences she had been charged with. On that same day MD rang AA to ask her about the charges. AA admitted to MD that she had been charged with the offences listed and that she had been taking illegal drugs. MD told AA that he was suspending her from working at RR pending the outcome of the criminal proceedings. MD told AA that she could recommence working for RR if she was found not guilty. AA told MD that she would be pleading guilty to the charges. AA told MD that she would be seeking spent conviction orders. MD agreed to provide a letter to the Court in support of her application for spent conviction orders. AA told MD that she had, or was about to, enrol in a program at Holyoake in relation to drug use.
On 11 September 2019, AA advised MD, by email, of the outcome of her criminal proceedings; she had pleaded guilty and had received spent conviction orders. She also told MD that she had received a community based order and may have to undertake drug testing.
The following day MD replied to AA and invited her to meet him at RR's premises. AA did so on 18 September 2019. At this meeting MD told AA that he would consider re-engaging AA after six months had passed.
There followed a period of time during which MD and AA exchanged emails. AA was asking when and if she could recommence working for RR and MD was effectively avoiding answering AA's questions.
By email dated 15 January 2019, MD advised AA that she would not be re-engaged to work for RR. It is on this date that AA claims RR discriminated against her by not re-engaging her to work for RR; she says because of her spent convictions.
The following matters are disagreed between the parties, and are the subject of differing evidence from AA and MD.
AA said that during the telephone conversation on 29 August 2018, MD told her that she may be able to come back to work if she was successful in obtaining spent conviction orders. MD denied this. AA said that she told him she was doing the Holyoake course to sort out her life ~~out~~ and it would help her obtain spent convictions. MD said she only said the latter to him. MD does not recall whether AA told him she had stopped taking illegal drugs, but whether or not she did tell him this, MD said he would not have believed her, given his general knowledge about the degree of addictiveness of methylamphetamine in particular.
The Tribunal finds that it is unable to be satisfied that MD did tell AA that she might be able to have her job back if she obtained spent conviction orders. It only has AA's evidence on this point and it seems inconsistent with all the other things MD was consistently saying to AA at the time. He may have suggested she might get her job back, but his later communications show that he always intended this to only occur after a period of time had elapsed so he could satisfy himself she was no longer using illegal drugs. Given MD's consistency in both his written communications to AA at the time, what he said to the Commissioner in response to AA's complaint and his evidence in these proceedings, the Tribunal is not sufficiently persuaded that he said anything more than something vague about possibly returning to work at some point.
What was discussed at the meeting on 18 September 2019 is also in dispute. AA said MD told her he wanted to have her back working for RR, however he felt he had to check with others before deciding whether he could do so. MD does not recall AA asking for her job back at this meeting. However, he does not deny that she did, and that she would have done so is entirely consistent with all of AA's written correspondence.
The Tribunal finds AA did ask MD if she could have her job back at this meeting. Again, it is likely that MD fobbed off AA in some way as it seems, consistently with his written correspondence to AA, that he did not want to answer that question if he could help it. MD probably did tell AA that he had to talk to others in senior management at RR about the matter.
MD said he did not have a proper understanding of what a spent conviction was. He said AA told him that a spent conviction removed the evidence of guilt from police files used in providing police clearances. This is consistent with the emails from AA in which she refers to spent convictions and explains to MD that it meant the convictions would not show up on a police record: Exhibit 3, at 24-26. MD said he did not understand that that occurred straight away, or that that meant RR could not decide not to engage AA if she was guilty of a crime: Exhibit 7, at 3//2 tag 11. In the second response to the Commissioner, MD referred to AA's taking of illegal drugs, her plea of guilty and concerns about her safety as reasons why RR did not wish to reengage AA to work at RR's premises.
The Tribunal finds that MD, acting as the working mind of RR, decided not to re-engage AA on 15 January 2019 for three reasons. One reason was the fact that she had admitted to him that she had been taking illegal drugs, including methylamphetamine. The second reason was that MD considered that there was a real occupational safety and health issue if he allowed AA, whom he believed was very likely to still be using illegal drugs, to work alone, late at night, at RR's premises. The third reason was that MD knew that AA had been convicted of a number of reasonably serious drug offences and knew that she had been given spent convictions for those offences.
The Tribunal finds these things because it found MD to be a credible witness who appeared to be doing his best to be honest in giving his evidence. In addition, these three reasons appear repeatedly in MD's written explanations of what occurred, and were provided quite close in time to when the events in question occurred.
The law cited above in relation to the need for the prohibited ground to be a substantial and operative reason for the conduct in order to establish victimisation, relies on cases that concern direct discrimination. The Tribunal considers it should apply this case law to AA's discrimination claim.
The Tribunal is satisfied that in this case, although MD had three reasons for deciding not to re-engage AA on 15 January 2019, a substantial and operative reason was the fact that she was convicted of drug related offences. He makes clear reference to the fact that AA was convicted of crimes as a real, and seemingly significant, reason for not engaging her in his correspondence to the Commissioner. He did not realise at the time he made the decision that, because they were spent convictions, RR was not permitted to treat AA differently because of those convictions.
The Tribunal considers that the proper comparator is a person employed or engaged by RR, who MD was told was using illegal drugs, including methylamphetamine, and whom he was aware had been charged with drug related offences and who had not been convicted of those offences after a hearing. MD was not asked what he would have done in relation to such a person. It seems, from MD's early communications with AA that he might have been willing to re-engage such a person on the basis that they had not in fact been using illegal drugs. However, if, as was the case with AA, the person had admitted to MD that he or she had been taking illegal drugs, including methylamphetamine, it is very unclear what MD would have done, given his other reasons for treating AA as he did. The Tribunal is not in a position to speculate as to what MD would have done. However, it is the Tribunal's view that this is a case where there is no need to consider the hypothetical comparator. MD did treat AA less favourably by not re-engaging her after she had obtained spent conviction orders and one of the substantive and operative reasons was the fact that she had been convicted of drug related offences. The Tribunal finds that RR, through MD, discriminated against AA on the ground of her spent convictions.
AA submitted that in fact she worked for RR as an employee, even after the arrangements were changed in relation to how she was to be paid by RR. The Tribunal does not need to determine whether AA was an employee or a contractor, as it is unlawful to discriminate against either on the ground of spent convictions. However, it is submitted on behalf of AA that any award made to her, if discrimination is found to have occurred, should include superannuation payments to which she is entitled, whether or not she is an independent contractor, and which she asserts was not paid to her.
The Tribunal finds that AA was paid contributions for her superannuation by RR. An email from MD to AA dated 20 February 2018 clearly shows that the calculation of the amount AA was to be paid once she commenced being paid on an independent contractor basis, includes contribution to payroll tax, annual leave, carers leave, public holidays and superannuation: Exhibit 7, at 13/1. If AA chose not to put the part of her pay that was intended to be for her superannuation contribution into a superannuation fund, that is no reason to require RR to again make superannuation contributions that have already been paid.
AA submitted that she should receive compensation for the discrimination against her at the maximum amount allowable under the EO Act. She says that she started looking for alternative work in October 2018 and could not find any work, and was still not working at the time of the hearing. AA provided a list she had prepared of the places at which she said she had applied for work. AA did not provide any copies of any applications, emails or any other correspondence in support of this list. At no time did AA mention what happened to the other 'cash' cleaning jobs that she said in her witness statement she carried out while working as an employee for RR.
MD offered to re-engage AA on 11 February 2019. The Tribunal finds that he offered this on the basis of the same pay and hours per week as she had previously received, but required AA to carry out the job during business hours when other people were on the premises.
AA's counsel made some submissions from the bar table about the unreasonableness of this 'condition'. He also submitted that AA could not be expected to go back to working for RR after the victimising texts that MD sent to her.
As will be seen from the following reasons, the Tribunal is not satisfied that RR, though MD, victimised AA. In addition, in light of what both AA and MD described as a very friendly relationship over the course of a number of years, and in light of the very reasonable and understanding communications of AA to MD indicating that she understood that RR might not be able to re-engage her, and also AA's research into spent convictions and their effect, the Tribunal is not persuaded that the texts from MD to AA would have resulted in her feeling any real or significant fear or upset at all. The Tribunal is not persuaded that AA at any time believed that MD had any power to do anything in relation to the reference that had already been given to the Court. At no point did she give any evidence to this effect. To the contrary, her evidence was that she was insulted and hurt. She may have feared that MD would not provide any further references for her, but given that she said she had not been successful in finding any employment at all, it seems this reference would have been of little use to her.
The Tribunal is not persuaded that there was any reasonable basis for AA to refuse MD's offer to re-engage her. AA asserted that it was more difficult to clean while people were in the offices, and that may be so. However, there was no evidence from an experienced cleaner, other than AA, that would support such a conclusion and the Tribunal is not persuaded that this 'condition' would have made the job untenable. The Tribunal finds that MD believed that his obligations under occupational safety and health required him to allow AA to clean only while other employees were present and he therefore believed he could only engage her on this basis.
The Tribunal finds that the period of loss of income caused by RR's discrimination against AA was between 15 January 2019 and 11 February 2019. As she worked 25 hours a week, at a rate of $31 per hour, this amounts to $3,100. AA said that RR had overpaid her in her final payment by three days. Although the Tribunal does not have any information as to how many hours of work that amounted to, or the amount of money this represented, doing its best, the Tribunal has subtracted $100 from the amount of compensation for loss of wages to be paid by RR to AA.
Turning to general damages for the discrimination, AA's representative submitted that an amount of $5000 would be reasonable compensation. The Tribunal has reviewed relevant cases in this jurisdiction and agrees with that submission.
The total compensation which RR must pay to AA to compensate her for her loss and damages caused by RR's discrimination is $8,000.

Victimisation claim

As indicated above, there is no dispute that MD did send two text messages to AA after he found out that she had lodged claims against RR at the Commission. There is also no dispute as to the content of those text messages. They have been reproduced above.
However, MD's evidence was that he never intended to cause any detriment to AA. He was not shaken in this testimony at the hearing. His letters to the Commissioner are consistent with his evidence at the hearing. The Tribunal is not persuaded that MD did have any intention to cause any detriment to AA. MD was hurt and upset that AA was making a complaint against RR in circumstances where MD had been instrumental in assisting AA to obtain spent convictions and provide ongoing references. MD did urge AA to withdraw her complaint, but he did not threaten that she must do so, nor did he understand that doing so would be a detriment to her. Despite seeming to have accepted the opinion of an officer of the Commissioner that RR may have acted unlawfully in relation to AA, for most of the proceedings in the Tribunal, MD did not seem to be able to comprehend that it had been unlawful for RR to treat AA the way it did. It was apparent that he remained confused about exactly why AA might be successful in a claim against RR, even at the final hearing. While MD suggested that he might withdraw his reference in relation to AA, the Tribunal finds that in fact he never had any intention of doing so.
In any event, the Tribunal is not persuaded that AA has established that the text messages in fact caused any substantive detriment to AA. She said she was hurt and insulted, but the Tribunal does not believe that AA in fact found the text messages to be particularly hurtful or insulting in circumstances where AA had been taking illegal drugs and had been convicted of a number of drug related offences. AA had researched spent conviction orders and was well aware that it was unlawful to discriminate against her. She moved very quickly to lodge her complaint after MD sent the email on 15 January 2019. The Tribunal is not persuaded that AA saw the text messages from MD as anything more than a vehicle to obtain more compensation out of RR in relation to her complaint.
As indicated above, the Tribunal is not persuaded that AA in fact believed that MD could withdraw his reference to the Court in support of AA's spent conviction applications, which of course he could not. The Tribunal is also not persuaded that the threat to not provide any future references was of any particular import to AA.
The Tribunal is not persuaded that the complaint of victimisation has been made out.

Orders

The Tribunal orders:
1.Having held an inquiry, the Tribunal has found that the applicant's complaint:
(a)of discrimination by the conduct of the respondent in not re-engaging the applicant to work as an 'office keeper' on 15 January 2019 contrary to s 17(2), s 18(2)(c)-(d) and s 24 of the Spent Convictions Act 1998 (WA) is substantiated; and
(b)that on 4 February 2019 the respondent, through the actions of its Managing Director, victimised the applicant by sending two text messages to her is not substantiated.

2.The respondent must pay the amount of $8,000 to the applicant as damages by way of compensation for the loss and damages suffered by the applicant by reasons of the conduct referred to in order 1(a) above.
3.The remainder of the applicant's complaint is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
30 DECEMBER 2019