Aldridge v Commissioner of Corrective Services

[1999] NSWADT 33

Set aside by Appeal: Set aside by on 18/4/00

CITATION:

Aldridge -v- Commissioner of Corrective Services [1999] NSWADT 33

DIVISION:

Equal Opportunity

APPLICANT:

Richard Aldridge

RESPONDENT:

Commissioner of Corrective Services

FILE NUMBER:

37 of 1997

HEARING DATES:

04/06/1998; 04/07/1998; 05/19/1998; 05/20/1998; 05/21/1998; 05/22/1998; 06/01/1998; 06/11/1998; 07/09/1998; 07/13/1998; 08/11/1998

SUBMISSIONS CLOSED:

02/23/1999

DATE OF DECISION:

25 May 1999

BEFORE:

M Biddulph - Judicial Member
J Strickland - Member
S Bullock - Member

PRIMARY LEGISLATION:

Anti Discrimination Act 1977

APPLICATION:

Disability Discrimination - Employment; Harassment; Race Discrimination - Employment; Victimisation -

MATTER FOR DECISION:

Principal matter

REPRESENTATION:

Applicant:
S Friend, solicitor

Respondent:
T Anderson of counsel

ORDERS:

1. That the Respondent pay to the Applicant the sum of ten thousand dollars ($10,000.00) damages for injury to feelings, distress, mental anguish and suffering, loss of dignity, embarrassment and humiliation and for stress and anxiety and loss of career prospects and development opportunities.

2. That each party pay their own costs.

3. That the Respondent restore the Applicant to a position within the Department of Corrective Services where the Applicant will have direct contact with indigenous people and in accordance with his Public Service grading.

1 Section 7 of the Anti-Discrimination Act 1977 (‘the Act’) provides:

“7(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race; or

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race; or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of sub-section 1(a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.”

2 Section 8 of the Act provides:

“8(1) It is unlawful for an employer to discriminate against a person on the ground of race:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment;

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

(c) in the terms on which the employer offers employment.

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:

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

(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 subjecting the employee to any other detriment.

(3) Subsections (1) and (2) do not apply to employment for the purposes of a private household.”

3 Section 49D of the Act provides:

“49D(1) It is unlawful for an employer to discriminate against a person on the ground of disability:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment; or

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

(c) in the terms on which the employer offers employment.

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:

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

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training or to any other benefits associated with employment; or

(c) by dismissing the employee; or

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

(3) Sub-sections (1) and (2) do not apply to employment:

(a) for the purposes of a private household; or

(b) where the number of persons employed by the employer, disregarding any person employed within the employer’s private household, does not exceed 5; or

(c) by a private educational authority.

(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

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

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

(5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the first mentioned corporation, is taken to be a related corporation within the meaning of the Corporations Law.

4 Section 50 of the Act provides:

“50(1) It is unlawful for a person (“the discriminator”) to subject another person (“the person victimised”) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act;

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act; or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.”

5 Section 4A of the Act provides:

“If:

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

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.”

HISTORY
6 The Complainant is an Aborigine and was employed in a grade 7/8 position within the Department of Corrective Services (“the Department”) within the New South Wales Public Service Authority. He was employed to develop, set up, and work in the Aboriginal Resources Unit until he was removed from that Unit in February 1996. The Unit was subsequently renamed the Indigenous Services Unit. The Indigenous Service Unit had jobs substantially the same as the job the Complainant was employed to do. He was not appointed to any such position. This decision was made by Mr Ron Woodham, the Assistant Commissioner of the Department.

7 On 20 November 1995 officers of the Aboriginal Resources Unit were informed that Joanne Selfe would be appointed as the Director of the new Unit and on 21 November 1995 the Complainant was placed on stress leave owing to a disability in his back. On 11 December 1995 Ms Selfe was appointed as the Director of the Aboriginal Resources Unit, later renamed as the Indigenous Services Unit. On 26 February 1996 the Complainant returned to work and reported to the Aboriginal Resources Unit, whereupon Ms Selfe told him he was no longer working in that Unit and was told to report to John Klok, Regional Commander, Eastern Region.

8 On 8 March 1996 the Aboriginal Resources Unit was renamed as the Indigenous Services Unit and began operating as such. On 11 March 1996 the Complainant wrote to Mr Paul Byrnes seeking confirmation of his position in the Department. Mr Byrnes was employed as the Manager of the Administrative Support Unit in the Head Office of the Department. On 20 March 1996 Mr Byrnes wrote to the Complainant and stated that he was a supernumery, Project Officer, Grade 7/8, but also stated that the Complainant would be interviewed for a new position in the Indigenous Services Unit. On 29 March 1996 the Complainant was called to the Eastern Regional Office and was told to report to Central Regional Office, Blacktown, and on 2 April 1996 the Complainant reported to Blacktown and it was indicated to him that he was to work on the Works Release Program. On 9 April 1996 Clarrie Dries, the Superintendent of the Corrections Intelligence Unit of the Department wrote a report to Ronald George Woodham, the Senior Assistant Commissioner of the Department about the complaint. On 10 April 1996 the Complainant received a letter from Mr Byrnes written under instruction from Mr Woodham retracting the letter of Mr Byrnes dated 20 March 1996 in which he had indicated to the Complainant that the Complainant would be interviewed for a position in the Indigenous Services Unit. On 6 May 1996 Mr Woodham wrote to the Public Service Association in reply to a letter the Association wrote to him on 24 April 1996, stating that work performance was the main reason for the Complainant being moved out of the Aboriginal Resources Unit/Indigenous Services Unit. On 20 May 1996 the Complainant reported to Head Office where Mr Byrnes told him to review the Operations Procedures Manual and on 24 May 1996 Mr Byrnes wrote to the Complainant setting out in detail what was required of him in his new role.

9 On 8 July 1996 the Department wrote to Southern and Western Regional Aboriginal Corporation for Justice, outlining the Complainant’s move to a different position. This letter clearly outlined the Complainant’s original position from 9 February 1993 to June 1995 which was extended to November 1995 and which reiterated the Complainant’s problem that he would not work with Ms Selfe.

10 On 16 July 1996 the Complainant received a letter informing him of his transfer to a permanent position in the Department which did not deal with the problem of indigenous persons.

THE EVIDENCE

The Complainant
11 The Complainant indicated that as the Senior Aboriginal Member of the Aboriginal Resources Unit he was for a period appointed to the Aboriginal Justice Advisory Committee where his role was to advise on the implementation of the Royal Commission into Aboriginal Deaths in Custody and issues relating to Aboriginal people. When asked if he felt that he was a token person to make it look in the community as if the Government was doing something about it, namely the welfare of the Aboriginal people, the Complainant stated that he was expected to say that things were going well and that he was expected to say that the implementation of the Royal Commission’s recommendations were being implemented when they were not, and during that time he was isolated in many ways and was denied resources which he said would properly fulfil his obligations as an Aboriginal person to other Aborigines. He stated that he made recommendations to Mr Woodham through Ms Sutherland his immediate superior and rarely received an answer from Mr Woodham. The Complainant complained that he was discriminated against on the basis of his Aboriginal race or ethnicity. He claimed he was not treated equally in his employment as a non-Aboriginal employee in a similar position would have been treated, and that he suffered detriment given that his job was to advise the Department on policies regarding Aboriginal issues, and he was ignored and treated dismissively.

12 The Complainant stated that he was “the most senior, most experienced, identified Aboriginal person in the Department of Corrective Services in the whole of New South Wales" at the time of his removal from the Aboriginal Resources Unit and this evidence was not subsequently contradicted. During the hearing of this case, the Complainant’s commitment to his job was not questioned nor was his competency, and it was established that he was a dedicated person attempting to get the best out of the Unit for the Aboriginal inmates.

13 The Complainant did not follow the “chain of command” whereby he should have submitted his recommendations through Ms Sutherland. The evidence from Mr Woodham subsequently was clearly that he did not expect him to follow the chain of command as he rarely did himself.

14 At a meeting held on 23 August 1995 of the Aboriginal Resources Unit, the Assistant Commissioner, Mr Woodham, arrived late to that meeting and uttered words to the effect, “If you do not like working here you can get fucked and go somewhere else.” Subsequently Mr Woodham denied using the words “get fucked”, but does not deny using a word constituting “f.u.c.k.”. The Tribunal on the balance of probabilities prefers the evidence of the Complainant to that of Mr Woodham.

15 At a previous meeting held on 10 July 1995 in relation to the Aboriginal Post-Release Program, the Complainant was told by Mr Woodham to “shut up and stop threatening him” when he made reference to the Assistant Commissioner in respect of the Aboriginal Deaths in Custody Royal Commission.

16 At the meeting previously referred to on 23 August 1995, Mr Woodham said to the Complainant: “If you don’t like working here, you can work somewhere else.” in front of the Complainant and his peers, and the Complainant submits that had he been a white employee such behaviour would not have occurred.

17 Counsel for the Respondent indicated that it was not unusual for allegations to be made of racist behaviour by staff of the Department, and the Complainant replied that all he knew was from his own point of view and what happened in his own particular case and what he did was write it down and complain officially. When it was suggested by Counsel for the Respondent that the Complainant did not have to accept the decisions of Mr Woodham, the Complainant replied that he was an Aboriginal person and that it was his role to advise the Department on cultural issues, and that if he felt that the decision made by the Senior Managers was wrong, from an Aboriginal’s perspective, he felt it was his right to stand up for the Aboriginal people.

18 In a reply to a Tribunal question, the Complainant stated that he had been on sick leave and when he returned to the Aboriginal Resources Unit in February 1996 he had a Medical Certificate saying that he was due to return to work on that day, and that he walked in to the Unit and was told that he was not to work in that Unit anymore. He was also told that Joanne Selfe had rung Head Office and he was to report to the Regional Office at Long Bay and that further work by him was to be undertaken from that office and that he was not to work on Aboriginal issues. The Complainant stated that he went to Long Bay on 26 February 1996 where he found no facilities available to him and where he had to find his own office. The Complainant stated that the Aboriginal Resources Unit had been, or was going to be, disbanded when it was indicated to him that he could no longer work there and that a new Unit called the Indigenous Services Unit was to be established and that he was not advised that there would be any positions in that Unit for which he could apply. He stated that he was aware however that there was a position of the same grade and on the same level in that new Unit. He further stated that he was not given the opportunity of applying for that position.

19 Where the Complainant's evidence conflicts with the evidence given by the Respondent, the Tribunal prefers the evidence of the Complainant.

Elizabeth Moye
20 Ms Moye is an Assistant Director, Organisation Development in the Human Resources Branch of the Department of Corrective Services. In examination in chief, this witness was asked whether the Complainant was eventually placed into a position beyond his supernumery position, and she answered in the affirmative, indicating that her area of responsibility was requested to recreate the Complainant’s former position. She stated that it was not possible to recreate the position as it is only possible to delete/create a position, and his position had been deleted in order to create one of the generic positions. Consequently one of the generic positions was deleted to create another position and another position number.

21 Further in examination in chief, the following question was put to the witness:

Question: Was this a new position, or do you know if his new position was evaluated?
Answer: It was not evaluated.
Question: Can you comment on why it wasn’t?
Answer: I have no idea why it wasn’t.
Question: Is it the usual practice for positions to be evaluated?
Answer: Usually before we create a position it is evaluated to ascertain or validate the grading, the classification and grading.

22 The witness was asked when the new positions in the Indigenous Services Unit were filled. She stated that she did not know exactly when they were filled but that they were advertised half way through 1996. She was then asked if she knew why the Complainant did not fill one of those positions, and she stated that she did not know. She also stated that she believed that the Complainant was not advised that the positions were to be advertised, and when asked when he was advised of the pre-publication, she stated that as far as she was aware he was advised that he had become supernumery. In answer to a further question by the Tribunal, whether it would have been usual practice in the Complainant’s case to actually advise him prior to advertising of the positions referred to, the witness stated that it would be the normal practice. The witness stated that eventually the Complainant was placed in position 257/051 which was not an Aboriginal designated position.

Danni James Mulvany
23 This witness was called on behalf of the Complainant and stated that he was employed by the Department as a Probation and Parole Officer. Between June and November 1995 he worked on secondment in the Aboriginal Resources Unit as a Policy and Project Officer. He stated that, in that unit, and during that time, he worked with the Complainant, Ms Sutherland and other Aboriginal Resources Unit staff. In reference to the meeting previously referred to in this Judgment where the Complainant alleged that Mr Woodham swore at him, the witness stated:

“Well I think just there is such a power imbalance between the Assistant Commissioner of the Department of Corrective Services who has all these responsibilities and all these privileges as well and then to treat someone else who is not in the same position as him in such an appalling way in front of his peers, it was just something that shocked me. That is why I remember it. I was literally shocked and disgusted by that behaviour.”

24 Under cross-examination the following questions and answers were asked and made:

Question: Mr Mulvany, the Complainant was not the only Aboriginal person there was he?
Answer: No he wasn’t.
Question: And yet you say that he was singled out?
Answer: Yes
Question: He wasn’t singled out because of his Aboriginality was he? It must have been some other factor?
Answer: He was singled out, I believe, because of his Aboriginality and because of his position representing the other Aboriginal people in that team, in that group.
Question: Mr Mulvany, do you honestly put that forward as your evidence?
Answer: Yes I do.
Question: was singled out because of his race?
Answer: Yes I do.
And later a further question:
Question: To that extent, doesn’t that lead you to understand that whatever aggression was being displayed at that meeting had nothing to do with the race of the persons who were participating but something to do with the policies and the attitudes of the people towards the work?
Answer: No that may be your suggestion but it is not – that is not- I don’t agree with it.

25 It was suggested that the Complainant under cross-examination abused Mr Woodham at the Meeting referred to and swore at him. The witness replied that he did not recall and that he had no knowledge of that. The witness further stated that he was not aware that the Complainant swore at the meeting concerned and when asked if he denied that the Complainant swore, he denied it.

26 The Tribunal considers that this witness was a reliable witness, was non-aboriginal, and in that sense differed from the other members at the Meeting and that his evidence should be preferred to the evidence given by the Respondent’s witnesses.

Colleen Sutherland
27 This witness was a Chief Welfare Officer with the Department of Corrective Services and was the Complainant’s immediate superior in the Aboriginal Resources Unit. She stated inter alia that she worked with the Complainant throughout the course of her employment within that Unit, and when asked if anyone had complained to her about the work performance of the Complainant she replied in the negative. This witness corroborated the evidence of previous witnesses when referring to the meeting in which invective was used by Mr Woodham in relation to the Complainant. She stated that Mr Woodham had said, “And you can get fucked and if you don’t like it you can get out of here.” The witness stated that she did not become aware that Ms Selfe was to take on the job as the Director of the Aboriginal Resources Unit until 13 November 1995 when she, the witness, was removed from that Unit.

Eva Mandel
28 Dr Eva Mandel is a Consultant Psychiatrist at Health Quest on a sessional basis and is a Fellow of the Royal Australian New Zealand College of Psychiatrists and has practised since 1964. She examined the Complainant at the request of the Department.

29 Under cross-examination the Doctor was referred to her notes by Counsel for the Respondent and inter alia the following questions and answers were given:

Question: Read the last sentence there, “Client had briefly met her before.”
Answer: Yes.
Question: Denies having stated that he would not work with her.
Answer: That’s right.
Question: So that is your statement of what he said and what was in his chronology?
Answer: Of course. I can’t go by anything else except what he tells me.
Question: And that is what he told you?
Answer: That is what he told me.

30 After indicating that the Complainant did not say he would not work with Ms Selfe, the witness was asked under cross examination:

Question: You came to the view that’s what he was suffering from as a result of his work situation?
Answer: Yes.
Question: What was it about his work situation which led you to that view?
Answer: The fact that he had been given this position first of all – yes I can’t remember the exact sequence of events but they are all in here. He was given the position and then later that position was deleted, and then he was given another position and then later on he was told that he was not to work in that position and was sent somewhere else and he was becoming pretty anxious about not knowing what he was doing and what work he was doing, plus the fact that he claims he was told he was not to have anything to do with Aboriginal affairs, which upset him.

Then later:

Question: But does he suffer symptoms which include depression?
Answer: Symptoms which?
Question: Include depression?
Answer: Yes.
Question: And stress?
Answer: Yes, anxiety, sleeplessness, etc, etc.
Question: Stress related depression?
Answer: Yes. Well adjustment – yes, stress related is fair enough, yes.
Question: That has an effect on his ability to work, is that right?
Answer: Yes.
Question: And an effect on his lifestyle?
Answer: Yes.
Question: And an effect on his social relationships?
Answer: It might have yes. Might be irritable, or distraught or whatever.

31 The Doctor indicated that the Complainant was quite disabled by stress related incidents and that he was anxious about his future because he did not know where he stood with his job. The Doctor indicated that the Complainant was attached to his first job, which was his former job in the Aboriginal Resources Unit.

32 In answer to the representative of the Complainant, the Doctor was asked:

Question: Arising from Ms Anderson’s question, you don’t say in your report when the Adjustment Disorder started?
Answer: Not directly but I think it is fairly obvious. Yes I think it probably started sometime in 1994 when he perceived that these problems were beginning to happen and that he wrote letters and got no answers and made statements and asked people about things they never told him, etc, so I think it probably started about then. Sometime in 1994.

33 The Doctor indicated that she had no concerns about the credibility of the Complainant and thought that he was quite genuinely distressed.

THE EVIDENCE OF THE RESPONDENT

Neville Robert Smethurst
34 This witness held the position of Commissioner of Corrective Services from 2 May 1992 to 19 August 1996 and was in the view of the Tribunal, a truthful witness. However, the evidence he gave was of little assistance to this Tribunal in the findings it eventually made. He indicated he had very little contact with the Complainant and that he was not aware from anyone of any problems of the work performance of the Complainant. The witness further indicated that he knew there were staff interaction problems between Mr Woodham and the Aboriginal Resources Unit. The evidence of this witness was of little assistance to the Tribunal.

Peter Townsend
35 This witness was employed as a Regional Aboriginal Project Officer with the Department of Corrective Services. The evidence of this witness lacked veracity was contradictory and could not be relied upon by the Tribunal.

Clarence John Dries
36 This witness was the Superintendent of the Corrections Intelligence Unit of the Department of Corrective Services. This witness, called by the Respondent was both hostile and angry in giving his evidence and it is difficult for a Tribunal to weigh the evidence of this witnesses in those circumstances. He indicated that he was asked to do something with the Aboriginal Resources Unit about October 1995 by Mr Woodham, namely to investigate and to see what was going on in the unit. The witness revealed that he was of aboriginal descent, but had not seen the need to reveal this fact until recently. The Tribunal is of the opinion that Mr Woodham asked this witness to have the Complainant accompany him on a trip, which he was to make to the country for approximately five days to enable him to write a report to Mr Woodham, which subsequently contained allegations that what the Complainant said during the trip was totally wrong in his view. He was asked:

Question: You didn’t believe everything he said was wrong, there must have been a lot of things you probably agree with?
Answer: I believe that he was wrong in what he was saying.
Question: The whole thing, everything, he said?
Answer: Yes.

37 This witness also indicated that during the trip in the latter part of 1995, the Complainant said some things to him and he recorded those in the diary to which he replied, “Yes he had recorded them in the diary.” The Tribunal noted that Mr Dries had diaries for the years 1993 and 1994 and for 1996 but that the 1995 diary containing the entries referred to above had been lost.

Paul David Byrnes
38 He was employed as the Manager of the operation’s Administrative Support Unit in the Head Office of the Department of Corrective Services. The evidence given by this witness was basically that he had no knowledge of the report of Mr Dries and that he understood that Mr Dries was doing a project for Mr Woodham. Other evidence given by him was of little assistance to the Tribunal in its final decision.

William John Ramage
39 This witness was employed by the Department of Corrective Services as the Manager of the Department’s Aboriginal Post Release Program but his evidence was of no assistance to the Tribunal. The Tribunal considered that the evidence given by this witness was unreliable having regard to previous evidence given in these proceedings. Inter alia, this witness was asked the following in cross-examination:

Question: Mr Woodham stormed into the room, did he not?
Answer: I don’t recall him storming into the room, no.
Question: He said words to Mr Aldridge to the effect of, “If you don’t like it here you can get fucked?”
Answer: I don’t recollect that, no.

The Tribunal does not accept this as a truthful answer from this witness owing to previous evidence given in this case.

Ronald George Woodham
40 Mr Woodham was the Senior Assistant Commissioner of the Department of Corrective Services and was the immediate superior to Ms Sutherland and two positions senior to the Complainant in what has been referred to as the "chain of command". The evidence of this witness was unreliable and he contradicted himself on many occasions during the giving of such evidence. Under cross-examination, he was asked inter alia:

Question: Correct me if I am wrong, isn’t it the rule that you don’t mention applicants for jobs to other people prior to the person being selected?
Answer: That is correct in normal circumstances yes.
Question: But you did anyway?
Answer: Yes to those two people yes.

41 As to the meeting where swearing is alleged to have occurred the witness denied that he said, “You can get fucked and if you don’t like working here I’ll get rid of you.” But indicated that he probably said, “If you don’t like working here you can work somewhere else.” Then he was asked:

Question: You now don’t deny using the word “fucking”?
Answer: I could have used the word “fucking” yes.

This witness changed his mind from the first statement to the second statement made by him concerning the words used by him at the meeting.

42 The witness could not remember the letter which Mr Dries sent him in April 1996, and said he didn’t recall whether he asked for the letter or not. Under cross examination, the following questions and answers were given:

Question: So you can’t recall whether you did or not? Well how else would he get it? Why else would he write you a report unless you asked for it?
Answer: I said I could have, but he might have written it on his own volition.
Question: On his own volition?
Answer: Could have.
Question: But you could also have asked him?
Answer: There’s – I can’t recall --.

43 It would appear that the said report came into the possession of the witness after the Complainant had been removed from the Aboriginal Resources Unit and the witness was asked if that report went to justify the Complainant’s removal from the unit. The witness replied as follows:

“There are a whole range of reasons for Mr Aldridge being removed from the unit and this report within itself didn’t cause that.”

44 The witness was asked if a position was created within the newly formed Indigenous Service Unit for a Clerk Grade 7/8, to which he agreed and it was put to him also that that position was substantially the same position that the Complainant was occupying. He was also asked whether the Complainant should have been placed in one of those Clerk grade 7/8 positions, but he disagreed with that proposition. It was put to the witness that the only reason that the Complainant was not placed in one of those positions was because the witness did not want him there. The witness replied that he did not want him there and that he had mentioned earlier in his evidence why this was so. In this regard, the Tribunal notes the witness' evidence in relation the use of the word “fucking” which was allegedly used by this witness at the meeting in August 1995. He originally indicated under cross-examination that he did not say it but later under cross-examination agreed that it could have happened. It was put to the witness that it was possible that he used the word “f.u.c.k.” rather than “fucking” to which he agreed and when it was put to him that what he said he might have uttered and what allegedly was said by him as indicated by other witnesses, he answered, “No, but I’m – I didn’t threaten to sack somebody or move somebody or to get rid of somebody, because I know what that means.”

Question: So that is a lie, is it?
Answer: Yes.

45 The witness agreed that it was a coincidence that Ms Sutherland and the Complainant were on leave when the Aboriginal Resources Unit was changed to the Indigenous Services Unit and Ms Self appointed and Ms Sutherland and the Complainant’s positions deleted.

46 In a statement made by him, this witness indicated that he did not want the Complainant to work on Aboriginal issues in any way that would interfere with, or undermine the role of the new Director, Ms Joanne Selfe.

47 This witness gave most conflicting evidence and in one answer under re-examination stated: “At the time that I gave Mr Dries that task I did not ask him, etc, etc, to provide performance reports.” And subsequently made the conflicting reply, “As I said earlier, I can’t recall doing it, I have to be honest, but I have also to be honest and say that I could have and probably did”, referring to his request of Mr Dries to submit a report to him, inter alia, on the Complainant.

THE DECISION OF THE TRIBUNAL
48 Initially, the Tribunal refers to s 4(a) of the Act which states that if an Act is done for two or more reasons and one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or substantial reason for doing the Act), then for the purposes of this Act, the act is taken to be done for that reason. The evidence in this case substantiates in the view of the Tribunal that on the balance of probabilities, the Respondent discriminated against the Complainant on the ground of race in that it treated the Complainant less favourably than in the same circumstances, or in circumstances which were not materially different, than it would have treated a person of a different race. Similarly, the Tribunal considers that the Respondent segregated the Complainant from persons of his own race by removing him from the Aboriginal Resources Unit and not offering him a position in the Indigenous Services Unit where such a position was available for such an appointment.

49 Referring once more to s 4(a) of the Act, the Tribunal is of the opinion that the removal of the Complainant from the Unit previously referred to and the admission by the Respondent to the effect that the Complainant was not to work with persons of his own race constituted an act done for two or more reasons, and substantiates the element of s 4(a) of the Act. Similarly, the Respondent unlawfully discriminated against the Complainant on the ground of race in the arrangements it made for the purpose of determining who should be offered employment and the terms of which such employment was offered pursuant to s 8 of the Act. Similarly, the Tribunal considers that inter alia s 8(2) par (a), par (b) and par (c) are applicable to this case and that the Complainant was subjected to a detriment which was substantiated by medical evidence called by him and other evidence given during the course of the proceedings.

50 The Complainant was removed from the job he was employed to do with the Aboriginal Resource Unit and was not offered a position in the Indigenous Service Unit which was required under the relevant Public Sector Management Act. He was moved from the Eastern Region to the Western Region offices and then eventually back into Head Office as a supernumery and he lost all self esteem as a result and was permanently psychologically scarred in being denied a close association with members of his own race whose betterment of conditions was his main aim in life.

51 There was no evidence that the Complainant was not dedicated to his job and there was no disciplinary action commenced against him by any person either in an inferior or superior position to him in the Aboriginal Resources Unit. In fact, all witnesses other than Mr Woodham stated that he did an excellent job and so far as Mr Woodham is concerned, the Tribunal forms the view that he did not like the Complainant not only as a result of the Complainant’s perpetual entreaties to Mr Woodham for assistance in the Aboriginal Resources Unit, but that he treated him detrimentally at the meeting held where certain language was used by Mr Woodham to the Complainant. This treatment occurred when the complainant was in the company of his peers, which greatly upset the Complainant and in the view of one witness, who was a reliable witness, such language was used to suggest that it was racially motivated.

52 Also, the evidence establishes that the Complainant was discriminated against in breach of s 7 and 8 of the Act in three ways:

1. The correspondence he sent to the Assistant Commissioner Woodham was not responded to.
2. He was abused by Assistant Commissioner Woodham in front of other staff members of the Aboriginal Resources Unit.
3. He was removed from his position within the Aboriginal Resources Unit and not put in a substantially similar position when a g rade 7/8 position was created or established in the Aboriginal Resources Unit renamed the Indigenous Services Unit.

53 The Complainant was removed from the principal Aboriginal Policy making Unit within the Department and this limit on the benefit associated with employment was a breach of s 8(2) par (b) or a subjection of the Complainant to a detriment within s 8(2) par (c) of the Act.

54 There was clearly a position which was substantially the same position as the Complainant was occupying in the renamed Indigenous Services Unit (evidence of Mr Woodham 11 August 1998) and see evidence of Elizabeth Moye 20 May 1998 at 27 – 28.

55 The Tribunal agrees with the submission that the Complainant was removed from his position because he made his views on matters known from an Aboriginal cultural standpoint which was not welcomed by the Department and specifically was not welcomed by Assistant Commissioner Woodham.

56 The Complainant denied ever telling anybody that he would not work with Ms Selfe and the evidence is that she was appointed to her position on or about 6 November 1995.

57 It was significant in the evidence that Mr Woodham referred in his second statement to a meeting with Ms Sutherland and the Complainant and that Mr Woodham states that the Complainant said he would not work with Ms Selfe. This appears to be spurious and the Tribunal notes that he made no mention of this conversation in his first statement and concludes that he rather relied on hearsay as to statements allegedly made by the Complainant about not working with Ms Selfe.

ORDERS
58 The Tribunal makes the following Orders:

1. That the Respondent pay to the Applicant the sum of ten thousand dollars ($10,000.00) damages for injury to feelings, distress, mental anguish and suffering, stress and anxiety and loss of career prospects and development opportunities.

2. That each party pay their own costs.

3. That the Respondent restore the Applicant to a position within the Department of Corrective Services where the Applicant will have direct contact with indigenous people and in accordance with his Public Service grading.