Ashley v Lowes Manhattan Pty Ltd
[2010] NSWADT 242
•12 October 2010
CITATION: Ashley v Lowes Manhattan Pty Ltd [2010] NSWADT 242 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
RESPONDENT
Lynette Ashley
Lowes Manhattan Pty LtdFILE NUMBER: 091074 HEARING DATES: 22, 23, 24 March 2010 and 26 May 2010 SUBMISSIONS CLOSED: 26 May 2010
DATE OF DECISION:
12 October 2010BEFORE: Huntsman C - Judicial Member; Weule B - Non-Judicial Member; Schneeweiss J - Non-Judicial Member CATCHWORDS: Victimisation - causation - whether manager was victimised by employer for reporting sexual harassment complaints made by junior staff - whether detriment suffered LEGISLATION CITED: Section 50 Anti-Discrimination Act 1977 CASES CITED: Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42
Hunt v Rail Corporation of New South Wales [2007] NSW ADT 152 at [182]
Nicholls and Nicholls v Director General, Department of Education And Training (No 2) [2009] ADTAP 20
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271
St Josephs Hospital Ltd v Correy (No 2) [2009] NSWADTAP 58
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44REPRESENTATION: APPLICANT
Mr Perry, instructed by Moya de Luca-Leonard, lawyersRESPONDENT
Mr Tindley, Retail Traders Association, QldORDERS: The application is dismissed.
REASONS FOR DECISION
Introduction
1 On 21 November 2008 Ms Ashley, the Applicant, lodged a complaint against Lowes-Manhattan Propriety Limited (“Lowes”), the Respondent, with the Anti-DiscriminationBoard, alleging that she was victimised in employment. The Applicant had been employed by the Respondent as a manager of one of the Respondent’s retail stores. On 5 June 2009 Ms Ashley requested the matter be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal. In her complaint to the Anti-Discrimination Board Ms Ashley alleged that after she advised management of Lowes that casual employees had raised allegations with her that they had been sexually harassed by an assistant store manager, she was told she would be transferred to another store. The Applicant had for many years been the store manager of the Cronulla store. At a meeting on 26 August 2008 with senior management of Lowes the Applicant was advised she was to be relocated to the Menai store.
The Applicant’s case
2 The Applicant gave evidence in support of her case in oral and written form. Ms Ashley’s written evidence consisted of an affidavit of 28 January 2008 (an annexure to the affidavit included a letter by Ms Ashley to the Respondent’s managing director, Mr Mueller, dated 29 August where she detailed her experience of relevant events); and a lengthy affidavit of 17 March 2010 where she provides a response to the written evidence of the Respondent’s witnesses. A number of documents were annexed to the affidavit of 29 March 2010 . Those documents included copies of correspondence, medical reports, documents relating to a worker's compensation claim and other material relating to Ms Ashley's employment with the Respondent. She also provided evidence from witnesses including Dr Lana Kossoff, and Ms Jennifer Kraus. Ms Kraus was an employee of Lowes who worked in the Cronulla store and who continued to be an employee of Lowes at the time of the hearing. This evidence will be further detailed below. Legal submissions were also presented. The Applicant's evidence focused around four major events/issues occurring during her employment with the Respondent: a complaint against the Applicant by an employee alleging bullying in April 2008; the Respondent’s subsequent requirement that the Applicant attend a training course and the applicant’s allegation that she was at this time removed from a position as training store manager; allegations of sexual harassment made by employees in Ms Ashley's store against an assistant manager at that same store in August 2008; and advice to the Applicant by the Respondent's managers at a meeting on 26 August 2008 that she was to be relocated to the Menai store. The Applicant's case is that she was victimised in her employment, and suffered a detriment, by the Respondent's decision to move her to the Menai store, and that this was due to her having reported the sexual harassment complaints.
The Respondent’s case
3 The Respondent's case consisted of legal submissions and evidence from witnesses in oral and written statement form, including Ms Josie Frisina, Mr Greg Lamond, Mr Jason Heap, Mr Leslie McLaughlin, Mr Savli, all employees of Lowes. The evidence is further detailed below. In summary, the Respondent states that it was believed the Applicant could benefit from training and so attendance at a course was arranged in June 2008. The Respondent states that the Respondent did not find the complaint against the Applicant of bullying to be established but did consider this, in the context of other observations/reports of the Applicant's style, to indicate she may benefit from training in communication and management skills. The Respondent states that the Respondent investigated the allegations of sexual harassment. The Respondent case is that the Respondent was not concerned that the Applicant had brought these complaints forward and indeed saw it as part of her role as store manager to do so. The Respondent’s case is that the relocation of the Applicant to the Menai store was due to the business/commercial needs of the Respondent and not due to the sexual harassment complaints.
The evidence
4 The evidence provided by the Applicant, and the evidence provided by the Respondent, indicates that in August 2008 Ms Ashley reported to senior management of the Respondent sexual harassment complaints made by junior staff in the Cronulla store. At a meeting on 26 August 2008 managers for the Respondent advised Ms Ashley that she would be relocated to the Menai store. It is not in dispute that prior to this there was a complaint against Ms Ashley of bullying and the Respondent required Ms Ashley to attend a training course. On a number of factual matters the evidence provided by the Respondent and the Applicant did not substantially differ. The evidence of the Applicant and Respondent did differ as to words said, and the meaning to be given to various events.
5 Ms Ashley was employed by Lowes, the Respondent, as store manager at the Cronulla store from November 2001.She worked continuously for the Respondent from 2001 to 2008 - Ms Ashley has not worked in her employment at Lowes since August 2008. Ms Ashley provides an account of events in her two affidavits submitted in these proceedings and also in a letter to the Respondent’s managing director, Mr Mueller, which is annexed to her affidavit of 28 January 2008. Ms Ashley details that in May 2007 a Ms Wright commenced at Cronulla store as assistant store manager and she was advised that her role was to train her quickly to enable her to take up a store manager position. Ms Ashley states that she was advised by Mr Lamond that she had been nominated as the training store manager within his group of stores. Ms Ashley states that Ms Purcell replaced Ms Wright in early November 2007 on a six-month probationary period. Ms Ashley states that she advised Mr Lamond about concerns relating to Ms Purcell’s performance in early December 2007. In March 2008 Ms Purcell made a complaint about Ms Ashley, alleging bullying. Ms Ashley states she was advised during a meeting at head office on 3 April 2008 of the complaint. She states that as a result of Ms Purcell's complaint she was told at the meeting,by Mr Jason Heap, that she would no longer be training store manager for Mr Lamond’s group of stores. Ms Ashley states that during the meeting on 3 April 2008 Mr Heap suggested she might like to do a training course. She states Mr Heap said he would send her a few course outlines and she could choose the most suitable course, to which she agreed. She states that she was later advised to attend a course which was directed at training for new managers, and that she discussed with Mr Heap, in about June 2008, that the course may not be suitable. It was her impression that Mr Heap did not seem concerned about whether she would benefit from the course. Mr Heap provided a different account as detailed in his written statement and discussed further below.
6 Ms Ashley states that during the meeting on 3 April 2008 Mr Heap advised her that many people in head office found her difficult to work with (Ms Ashley states this in her letter to the general manager, Mr Mueller, which is annexed to her affidavit). She says that when she questioned Mr Heap as to who had this view he named two people, and Ms Ashley states that she could not recall having a conversation with at least one of these people, let alone a disagreement. In her statement of 28 January 2010 she states that she felt blackmailed by Mr Heap that if she did not attend the training course she would receive a warning. She felt unsupported by her employer and experienced difficulties sleeping.
7 Ms Ashley states she sets high standards for herself and is a bit of a perfectionist (so stated in the letter to Mr Mueller). She disputes that she is difficult to work with, and details that employees who have left the store to travel overseas, have, on their return, come to work in her store again.
8 Ms Ashley describes a meeting in June 2008. Prior to this meeting she had received an e-mail regarding a training course. She detailed her point of view that the course was not appropriate for her and details discussing this with Mr Heap. She stated she was given a direction by Mr Heap to attend the course, she also said that he called her “ headstrong and opinionated”. Ms Ashley states that during the week of the meeting she was advised by Mr Heap and Mr Lamond that Mr Pike, assistant store manager at Menai, would be transferred to Cronulla to replace Ms Purcell who had resigned because of an ankle injury (so stated in letter to Mr Mueller). Mr Pike commenced at the Cronulla store on 17 June 2008.
9 Ms Ashley states that on 3 July 2008 Ms Josie Frisina and Mr Lamond visited Cronulla store and had discussions with Ms Ashley and Mr Pike regarding his settling in. Training issues were discussed. During the following weeks Ms Ashley continued to advise Mr Lamond of performance issues with Mr Pike.
10 On 11 August 2008, a 17-year-old casual employee advised Ms Ashley of an incident which had occurred, being a personal contact incident with Mr Pike. Ms Ashley telephoned Mr Lamond. Ms Ashley detailed in her affidavit of 28 January 2010 that she received complaints about Mr Pike's behaviour from three casual employees in the period 11 August 2008 to 15 August 2008 which she reported to management. Mr Lamond and Ms Frisina came to the Cronulla store and spoke with the employees in regards to the incidents (one employee due to university commitments was interviewed at head office). Ms Ashley states that one of the employees informed her on 21 August of a comment made by Mr Pike the previous day, which concerned her and the Applicant contacted Mr Lamond and queried whether a written complaint would be required. The Applicant indicates she never heard from Mr Lamond about whether a written complaint should be made.
11 The Applicant states that on 25 August 2008 she received a phone call from Mr Lamond requesting she attended a meeting at head office the following day at 3 pm. She states that she was told the meeting was regarding Mr Pike. She said that during the meeting she was asked for her version of events and she replied she could only say what the employees had told her. She said she was asked by Mr Heap whether she had spoken to Mr Pike and she informed Mr Heap that she had not done so and neither had the employees. She states that she was made to feel that by not saying anything to Mr Pike she had worsened the situation, but she states with every incident she had told her direct manager, Mr Lamond, at the earliest possible time. Ms Ashley states that she was asked if she thought the working relationship could continue between Mr Pike and the employees, and she stated that the employees felt uncomfortable. Ms Ashley states that Mr Heap agreed it was unworkable and advised her that Mr Pike would be transferred to Rockdale store. Ms Ashley states that Mr Heap then advised her that she would be transferred to the Menai store. In her affidavit of 28 January 2010 Ms Ashley details that she asked Mr Heap the reason for the decision and he said “you need a change! You have been at Cronulla too long”…..” Well it's good for the company! “Well consider it a promotion! “ Ms Ashley states that she does not consider it a promotion as the store is similar in size to Cronulla with similar or less turnover (paragraph 104). She says that she asked whether the “change is to do with the personal contact incidences regarding Peter” and that Mr Heap replied “well, yes, and there were previous issues”. Ms Ashley said that she asked “do you mean by previous issues, Belinda's complaint in March and the events from 2008 to now?” She states that Mr Heap replied “yes, but see Menai as a promotion!” In her letter to Mr Mueller she also gives an account of the conversation with Mr Heap at the meeting of 26 August 2008. She states that when she asked Mr Heap to explain the rationale behind the decision to transfer her to Menai he stated that “I needed a change” that “I had been at Cronulla too long” and that ‘Cronulla needed a fresh the management team’, “that the move was good for the company” and that “we like to move people around all the time etc etc”. Ms Ashley states in the letter to Mr Mueller that Mr Heap also advised her that the reason for the move to Menai was to do with “previous issues”. She states she asked Mr Heap whether previous issues meant the letter that Belinda had written [complaint of Ms Purcell] and the subsequent events from March 2008 now. “He confirmed this”. The Applicant further states “again I feel that I am the one being unfairly punished by being transferred to Menai due to Belinda’s letter [Ms Purcell’s complaint] and subsequent events, as well as the personal contact incidents that have occurred through no fault of my own.” She said she questioned Mr Heap about additional travel expenses and was told there would be no increase in salary.
12 Ms Ashley states that when driving home from the meeting she received a phone call from Mr Lamond who told her she would be starting at Menai on Friday 29 August. She saw her local doctor on 26 August 2008. On 29 August she wrote to Mr Mueller, managing director of Lowes. Ms Ashley states that after 26 August 2008 her physical symptoms of illness increased. Ms Ashley states that she was feeling unwell, anxious and helpless. She declined to attend work at the end of August 2008, and chose to await a reply from Mr Mueller, managing director. She received a reply on or about 21 October 2008. The Applicant states in her affidavit of January 2010 that she felt victimised and scapegoated by Lowes in the incidences between March and August 2008; she felt demeaned and devalued. She felt she had being demoted and then required to move to Menai which she also considered a demotion and that this ignored her long-standing relationship with Lowes and the contract. She states there was a contract with Lowes in 2007 and when she entered the contract she wished to remain at Cronulla and Lowes was aware of this.
13 She had discussions in late October and November 2008with Mr Savli, Operations Manager at Lowes. These discussions were about a return to work. She was told it was not performance related and that she was an excellent manager, but the company liked to move people around. Ms Ashley states that she discussed with Mr Savli that she had always been open in her desire and expectation that she remain at the Cronulla store. Ms Ashley also details a meeting on 17 November 2008 discussing options. She states she filed a claim with the Anti-Discrimination Board on or about 19 November 2008. Ms Ashley states that she lodged a workers compensation claim in June 2009 (citing bullying and victimisation as causative of work based injury), however the claim and appeals were rejected by the employers workers compensation insurer. She states that she continues to suffer insomnia and broken sleep, and loss of concentration due to workplace injury.
14 Ms Ashley provided an affidavit and report by Dr Lana Kossof, Consultant Forensic Psychiatrist, who also gave oral evidence to the Tribunal. Dr Kossof states in her report that Ms Ashley is suffering from an adjustment disorder with depressed mood and anxiety. “ This was triggered when incidents occurred in the workplace where Ms Ashley perceived that that she was being unfairly punished when no issues were raised about her performance. She considered that being transferred to another store and being sent to a lecture was ‘punishment’ because she had reported some difficulties with the assistant manager and a bullying complaint had been raised against her but she said that her performance was never adversely commented upon.”
15 Ms Frisina states she was employed by the Respondent as a regional human resources manager in November 2007, and she became the Human Resources (HR) representative responsible for Mr Lamond’s stores in March 2008. Ms Frisina described her initial impression of Ms Ashley as someone protective of her store at the same time very capable, and that she put a lot of effort into the way she presented her store. Ms Frisina expressed the opinion that Ms Ashley might benefit from training in communication with staff. Ms Frisina also details that the Respondent, in other store regions, had been moving store managers between stores as it was seen to be of benefit, but that Mr Lamond's region was one of the more difficult ones to bring about movements between stores due to its geographical size and distance between stores.
16 Ms Frisina states that discussions about moving store managers in Mr Lamond’s area began in April 2008 and were ongoing. She recalls discussions about a possible move for Ms Ashley to the Miranda or Menai store. Ms Frisina refers to the advice from Ms Ashley about the complaints of sexual harassment by the employees in the store, and her response that she would need to speak to each of the employees making a complaint. Ms Frisina states that during these interviews none of the employees were able to say with certainty that Mr Pike’s actions were intentional, nor did any want to take the matter further. Ms Frisina stated it appeared to her that the employees felt that the contact may have been accidental. Ms Frisina also states she made enquiries with the previous stores where Mr Pike had worked.
17 Ms Frisina details discussions that she had with other Lowes managers, of her finding that Mr Pike had made the employees uncomfortable but that Ms Frisina did not think there was enough to substantiate sexual harassment; and that management agreed that they should talk to Mr Pike to let him know he needed to be careful about the way he interacted with other team members. They agreed to have a discussion with Mr Pike about his general behaviour.
18 Ms Frisina states that another store manager, Mr Hutchison, stepped down from a trial of managing the Menai store because of significant travel requirements (75 minutes extra travel compared to his previous store location). Management were then looking for a suitable store manager for Menai, and the issue become an urgent priority by late August 2008. The manager of the Bondi store (Ms Durant) wanted to move to a store closer to her home and it was decided that Ms Ashley should take over the Menai store and Ms Durant take over Cronulla. It was stated that Ms Durant would not be the best fit for Menai: Bondi had a very small school wear section, meaning she had very little school wear experience it was said there was a need for school wear experience in Menai. Menai was a growth area and it was suitable to move an experienced manager, such as Ms Ashley, to Menai given its growth potential, and given that it had experienced a series of management changes in recent times. This would mean the less experienced manager would move to a stable store being Cronulla.
19 Ms Frisina states she took notes during the meeting of 26 August 2008 with Ms Ashley, where Ms Frisina was present, as was Mr Heap, and Mr Lamond . She detailed discussions during the meeting that Mr Pike would move to the Rockdale store and Ms Ashley to the Menai store.
20 Mr Lamond in a witness statement gave similar evidence, and also stated that there was no position of training store manager existing at Lowes. He states there were concerns at head office that Ms Ashley had developed a negative attitude and had become difficult to approach. It was decided she would benefit from undertaking some training on people management/interaction. Mr Lamond states that in early 2008 he had been speaking with other management about moving store managers in his region. Mr Lamond states that while he had no concerns about the performance of the Cronulla store he did believe Ms Ashley could benefit from a move to a new, challenging role. He noted that needing to find a manager of the Menai store became pressing in August 2008. Mr Lamond states that the move to Menai became a pressing matter because there was no manager in place at the store. The store was being run by an acting manager who did not want the role and that person was due to take an extended period of leave to travel overseas from 1 September 2008. Mr Lamond states that it was considered vital that Ms Ashley commence at the store prior to the acting manager taking leave.
21 Mr Lamond gave details of the meeting at head office on 26 August 2008. Mr Lamond states that on or around 27th of August 2008 he telephoned Ms Ashley to tell her that she would receive an extra $40 per week to assist with extra travel costs with the move to Menai. Mr Lamond’s evidence is that the decision to move Ms Ashley to the Menai store was based on the needs of the business. He had no concern about the way in which Ms Ashley dealt with the complaints of sexual harassment and the complaints were not relevant to the decision to move her to the Menai store. He states that consideration had been given to moving her prior to the complaints being made.
22 Mr Jason Heap detailed in a written statement that he initially had dealings with Ms Ashley to try to get her to take outstanding annual leave as she had accumulated over six months of annual leave entitlements. Mr Heap referred to Ms Purcell's complaint and discussions with Ms Ashley about the complaint, and to the decision that a training course might be of benefit. Mr Heap also gave evidence about the decision to move Ms Ashley to the Menai store, and the reasons this was seen as preferred option.
23 Mr Heap refers to the application for employment form which Ms Ashley completed when applying for employment with the Respondent. He notes that the form states that Ms Ashley agreed that she could be transferred, at Lowes discretion, on either temporary or permanent basis, to another Lowes store within 25 km of the first place of employment. Ms Ashley’s first place of employment was either Miranda, where she undertook initial training, or Cronulla where she commenced as store manager, both the stores were within 25 km radius of the Menai store. He stated that he had no issue with the way Ms Ashley handled the complaint against Mr Pike made by employees whom she managed on behalf of Lowes - as store manager he considered it part of her role to report to management what the employees had told her. Mr Heap also gives evidence of the meeting on 26 August 2008 in similar terms to the other witnesses for the Respondent
24 Ms Jennifer Kraus, employee of Lowes, gave evidence in written and oral form as part of the Applicant's case. It was conceded by Ms Kraus during cross-examination that she had given extra detail in her written statement prepared for the current proceedings, to the detail given when she was interviewed by Ms Frisina in August 2008 in relation to the interactions with Mr Pike. During cross-examination the record made by Ms Frisinain handwritten notes of her conversation with Ms Kraus about the complaint was put to Ms Kraus, and Ms Kraus agreed with that record of the conversation. In her statement Ms Kraus stated that she had experienced a reduction in working hours with the Respondent since the departure of Ms Ashley in around August 2008.
25 There was considerable questioning about this issue during the proceedings and both parties prepared schedules in relation to the hours worked by Ms Kraus. A schedule prepared by the Respondent, which was said to be prepared from payroll records, indicates that Ms Kraus worked a higher number of hours in April and May 2008, she worked less hours in July 2008 and August 2008. She worked a greater number of hours than she worked in July and August 2008, in October 2008. Hours worked continued to fluctuate through 2009, being lower in early January 2009 and high in March 2009, April 2009 and May 2009. Hours worked were also relatively high in a week in July 2009. From February 2009 through to August 2009 hours worked were greater than in January 2009. The Applicant also submitted a record of hours worked (exhibit A8) which compared total hours as a weekly average in the period March to August 2008, too total hours worked as a weekly average in the period August 2008 to March 2010. The Tribunal notes that these are substantially different periods of time: the first period of time being some five months, the second period of time being some 19 months. The schedule submitted by the Applicant to evidence Ms Kraus’s working hours also states that she worked 60% of her hours at the Miranda store from August 2009 and she now works 100% of her hours at the Miranda store.
26 There was also considerable questioning of Ms Kraus in relation to her evidence about being stopped from ordering stock - she states this was something that Ms Ashley allowed her to do, and after Ms Ashley's departure she was told to stop ordering stock. Evidence given by Mr Lamond was to the effect that only a store manager should order stock off-line, and therefore he sought to cease the practice of a casual employee ordering stock.
27 After the close of the Applicant's case, and during the presentation of the Respondent's case, the Applicant applied to call Ms Kraus to give further evidence. There was some argument during the proceedings about the basis for this. It was submitted that matters had arisen during the proceedings which could not be previously addressed by the witness. It was submitted that serious allegations were made about Ms Kraus's credit and that these matters were put during cross-examination to Ms Frisina by Counsel for the Applicant. After some argument and submissions by the parties legal representatives, a further statement by Ms Kraus was admitted into evidence, although only part of the statement was admitted (paragraphs 4,5,6 and 11).Ms Kraus also gave oral evidence. The evidence related to Ms Kraus’s business card, which during the hearing was observed to be on the bar table in the hearing room, and which previously had been given by Ms Kraus to Ms Frisina,and other matters as set out in the written statement.
28 The medical reports provided by Ms Ashley in the annexures to her affidavit of 17 March 2010 describe accounts given by Ms Ashley to those practitioners, and a number of details are fairly consistent with what Ms Ashley describes in her letter to Mr Mueller, managing director for the Respondent. The report by Dr Saville of 4 September 2009 indicates that Ms Ashley presented on 26 August 2008 in great distress. “ Ms Ashley explained that she was experiencing and battling a great deal of accumulated work stress since the early part of 2008 following a letter of complaint being lodged against her by trainee staff member at the Cronulla store [Ms Purcell]”. Dr Saville indicates that more recently Ms Ashley attended upon him in relation to a thyroid investigation and told him more about her employment situation. Dr Saville notes that Ms Ashley reported that the complaint of bullying by the employee had the effect of setting in motion a cascade of events. She is recorded as advising Dr Saville that a consequence of the trainee staff member’s complaint was that Ms Ashley was required to undertake a course and there was a reduction in her managerial duties. “ Ms Ashley attended this course as instructed, with feelings that she was being unfairly victimised and held the belief that she was being punished”. Dr Saville states that Ms Ashley detailed reporting the sexual harassment incidents and that the action adopted by Lowes was that she was advised that she was to be transferred to another store. Dr Saville records Ms Ashley's explanation that she found communication with Lowes’ human resources manager difficult, at the best of times, because of a dismissive approach he apparently adopted to addressing matters of concern that she had.
29 It is noted that the history Dr Saville details as being reported to him by Ms Ashley is consistent with the history as detailed by Ms Ashley to Dr Korsoff. To Dr Korsoff Ms Ashley stated, in relation to having to attend a training course after the alleged incident of bullying, that “she felt she was being punished that there was no formal disciplinary action taken against her..... she was allegedly told that she was ‘headstrong and opinionated’. She went to the course, although she felt she was being belittled by attending and got nothing out of it. She felt she was being punished but kept working, trying not to cause problems.” To Ms Morrow Ms Ashley is recorded as stating that it was obvious to her that she was being punished because of the complaint made against her [Ms Purcell] and for challenging Mr Heap.
Legal considerations
30 The Anti-Discrimination Act 1977 NSW (the Act) provides at s50:
50 Victimisation
- (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.
31 In interpreting the requirements of s50 of the Act, the Tribunal agrees with the statement of the Tribunal in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 235 –
- The approach taken by this Tribunal to assessing evidence in victimisation complaints is set out in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at p 78,986 (see D -v- Berkeley Challenge and the decisions cited there at para 99). We see the steps as logically proceeding in this order: a Tribunal will ask whether an Applicant did or was suspected of doing one of the acts in s50(1), and whether the Respondent did anything which caused detriment to the Applicant. If the answer to both is `yes', the Tribunal will then ask whether there is a causal link between the two: did Respondent do that thing on the ground that the Applicant did or was suspected of doing one of the acts in s50(1)?
32 In the present case the Tribunal must decide firstly whether Ms Ashley did or was suspected of doing one of the acts in s50(1). The Tribunal considers that when Ms Ashley reported the complaints of the junior employees, to the management of the Respondent, then Ms Ashley’s actions came within s50(1)(c) of the Act.
33 The Tribunal then needs to consider whether Ms Ashley suffered a detriment. In order to establish detriment, a complainant of victimisation must have been "placed under a disadvantage as to a matter of substance, as distinct from a trivial matter": Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42; Hunt v Rail Corporation of New South Wales [2007] NSW ADT 152 at 182. The detriment suffered must be "real and not trivial". Whether something constitutes a detriment must be determined objectively and not subjectively: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41].
34 In the case of Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 the Tribunal stated:
- The elements of victimisation can be described as a four-fold requirement. Firstly, the Respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the Respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith. That defence is not relied on in this case. It has been suggested that there is an additional requirement of intention implicit in the word "subject" (see Bhattacharya v Department of Public Works (1984) EOC 92-117; Bogie v The University of Western Sydney (1990) EOC 92-313). However, in the light of later decisions (particularly Australian Iron Steel Pty Ltd v Banovic [1989] HCA 56 ; (1989) 168 CLR 165 at 176 and Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349, at EOC pp 78,674 and 78,687; CLR pp 359 and 382) in our view this requirement means no more than that the conduct of the Respondent was done on one of the grounds referred to and adds nothing of substance to the other stated requirements. The phrase "in any circumstances" which does not appear in Federal legislation in our view emphasises that the word "detriment" is to be given a broad interpretation. As to the meaning of the word "detriment" we do not consider it helpful to refer to the relative concept more applicable to discrimination provisions namely "to suffer a material difference in treatment" but prefer the Macquarie Dictionary meaning of "loss damage or injury" (cf Bodart-Bailey v Australian National University, (1995) EOC 92-744 at p 78,553.
The detriment suffered by the complainant must be real and not trivial. Whether something constitutes a detriment must be determined objectively and not subjectively. In other words, it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the Respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment.
35 In the present case Ms Ashley asserts that being moved to the Menai store is a detriment: the evidence indicates that Ms Ashley had made it clear to the Respondent that she wished to stay at Cronulla and so Ms Ashley would view the move as a detriment. She clearly perceived it as a punishment. The Respondent states it is no detriment because she was moved to a position of the same status and salary (the Respondent also offered a further allowance to cover travel expenditure). The Tribunal notes the guidance provided by the cases set out above, with which this Tribunal agrees, that the word detriment is to be given a broad meaning. Whether something constitutes a detriment must be determined objectively and not subjectively, that is not from the point of view of Ms Ashley or the Respondent, but viewed objectively. The question to be asked is whether a reasonable person would consider that the Respondent’s decision to move Ms Ashley to a different store, being the Menai store, after years of working as the manager of the Cronulla store, at short notice, would be considered a detriment – or a loss, damage or injury suffered by Ms Ashley. The Tribunal considers that a direction to move the location of one's employment, without consultation, may be something which a reasonable person would consider a detriment. However, even if the Tribunal is satisfied that the move to Menai constituted a detriment, the Tribunal must be satisfied that a reason for the Respondent’s decision to move Ms Ashley to the Menai store was Ms Ashley's reporting of the sexual harassment complaints by junior employees. The Tribunal in deciding this issue has had regard to decisions of the Tribunal in relation to causation in victimisation applications. In particular the Tribunal has had regard to the decision of the Appeal Panel in the case: Nicholls and Nicholls v Director General, Department of Education And Training (No 2) [2009] ADTAP 20. In that case it was stated:
- 29 ……We consider that the same approach should be adopted when interpreting s 50. The fact that s 4A is not expressed to apply to complaints of victimisation does not necessarily mean that ‘on the ground of’ should be given a different meaning in s 50.
30 However, Buchanan J in Penhall-Jones v State of New South Wales [2007] FCA 925 , gave those words a different meaning………
31 Buchanan J went on to set out the test of causation in victimisation complaints under the DDA:
. . the ground or reason relied upon to establish a breach of the relevant legal obligations need not be the sole factor but it must be a substantial and operative factor . . . It must afford a rational explanation, at least in part, ‘why’ an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation. [Emphasis added.]
32 The Federal Court has applied the same test in relation to the victimisation provision in the Sex Discrimination Act 1984 (Cth): Obieta v NSW Department of Education & Training [2007] FCA 86 at [240] ; Huang v University of NSW [2008] FMCA 11 at [120] .
33 In 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.
34 The 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.
35. In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 (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.
36 The 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.
37 Conclusion. 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.
36 The case of Hunt v Rail Corporation of New South Wales [2007] NSWADT 152 also provides some guidance. In that case the Tribunal stated:
179 In considering whether conduct could amount to victimisation, the Tribunal has to be satisfied that there was a real causative effect. Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44. While victimisation does not have to be intentional, W v City of Perth (1977) 71 ALR 943, where there is another explanation for the conduct, that explanation should be preferred and there should be no finding of victimisation. Alone v State Housing Commission (1992) EOC 92-393…….
37 In the present case the Applicant has no direct evidence that a reason for the decision to move her to Menai was her reporting of the employees complaints (she does rely in part on words used during the meeting which if accepted by the Tribunal may constitute some direct evidence and this is further discussed below). Generally, Ms Ashley's case relies on the Tribunal drawing inferences from the context of events, timing of events, as to the reason for the decision to move Ms Ashley to Menai. The Applicant’s legal representative did refer to this issue in his submissions and referred to the decision in Dutt v Central Coast Area Health Service [2002] NSWADT 133. The Respondent’s legal representative referred to the case of St Josephs Hospital Ltd V Correy (no 2) [2009] NSWADTAP in relation to the drawing of inferences and submitted that where there was a more probable and innocent explanation available on the evidence an inference should not be made. These issues were subject of discussion in the case of Chi v Technical and Further Education Commission (no 3) [2009] NSWADT 271:
85 The exercise of drawing inferences has been discussed the Tribunal in numerous decisions: for example, Hafez v Warilla Women’s Refuge Ltd & Ors [1997] NSWEOT (at page 5 of 35); A v B [1997] NSWEOT (at page 17 of 19); Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 ; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] . As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 ; (2000) 49 NSWLR 262 , identify the following considerations in the drawing of inferences of discrimination:
(a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts;
(b) an inference must be reasonably drawn on the basis of the primary facts;
(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;
(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";
(e) the inference must be a logical one, and not supposition;
(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.
86 In our opinion, such considerations are equally applicable to drawing inferences of victimisation. In the instant case, of particular pertinence is the consideration that an inference cannot be made where more probable and innocent explanations are available on the evidence.
38 In St Josephs Hospital Ltd V Correy (no 2) [2009] NSWADTAP 58 (Correys case) the Appeal Panel of the Tribunal noted that the case of Dutt v Central Coast Area Health Service [2002] NSWADT 133 provided a useful summary of the relevant principles when drawing inferences in discrimination cases. The Appeal Panel stated that the same principles apply to victimisation complaints. The primary facts in Correys case are set out in paragraph 40 of the decision and relevantly one of the findings of fact was that the employer did not offer an innocent explanation for the action said in that case to constitute a detriment(a rostering decision) . In Correys case no inference could be drawn from the primary facts that the rostering decision was made because the Applicant in that case had complained of discrimination.
39 Difficulties faced by an Applicant: obtaining evidence and proof and inferences
The Applicant’s legal representative also referred to the recognition by the Tribunal in previous cases of the difficulties which may be faced by an Applicant to establish evidence to support a claim of discrimination and/or victimisation in employment. The issue of the difficulties for an Applicant to establish evidence to support their case was discussed by theTribunal in detail in the case of: Dutt v Central Coast Area Health Service [2002] NSWADT 133:
- There is no direct evidence before the Tribunal that these decisions of the Club were based on the Applicant's race or sex or both. The Applicant's case is based on circumstantial evidence.
This is not unusual. As observed by the Western Australian Equal Opportunity Commission in Alone State Housing Commission ("Homewest") (1992) EOC 92-392 at p. 78,789, racial discrimination, of its very nature, is "... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial. "
The Tribunal recognises the difficulty faced by an Applicant in discharging the onus of proof in the absence of direct and positive evidence that the treatment suffered by the Applicant was on the ground of the Applicant's race or gender.
In cases where there is no direct evidence of the discrimination, the Applicant may use in support inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Khanna v Ministry of Defence(1981) I.C.R. ……
….Difficulty in obtaining evidence
71 When relying on inference an Applicant must identify the evidence on which the inference can reasonably be based. A particular difficulty is, as Thornton among others has observed, that the Respondent invariably controls the information necessary to the Applicant's case (Liberal Promise at p182).
72 The exercise is made even more problematic when the conduct in relation to which an inference is to be drawn took place in the context of employment. In Thornton's view (Thornton M., `Revisiting Race' in Racial Discrimination Act1975 : A Review, Human Rights and Equal Opportunity Commission, 1995 p81, at p90):
. . . employment complaints . . . are notoriously difficult, for the alleged racism quickly becomes interwoven with bona fide considerations of merit, including formal qualifications, experience, workplace practices and relations with one's peers. Unless the conduct is unequivocal, such as including a written component, the burden of proof is virtually insuperable.
73 Thornton's view (`Revisiting Race' at p92) is that
[t]he mere articulation of a rational explanation [by the Respondent] can carry a probative weight which is difficult for the complainant to rebut . . .
Unless the evidence is incontrovertible, and it rarely is in employment complaints, the Respondent is able to raise a bona fide explanation for the less favourable treatment and confound the proof problematic. The racist narrative told by the complainant then becomes inextricably intertwined with the Respondent's rational explanation for subjecting the complainant to the alleged detriment. It is therefore not surprising that the preponderance of [race complaints in employment] were dismissed because of the complainant's failure to satisfy the burden of proof.
74 This difficulty for an Applicant has long been acknowledged in decisions in this Tribunal (see, eg, Carberry v Culburra Bowling & Recreation Club Limited [1997] NSWEOT at p 3) and in the Federal jurisdiction. In Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia & Ors [1989] HREOCA 3 Einfeld J said at p 11
. . . racial discrimination will mostly if not always have to be proved inferentially or circumstantially. Thus evidence of discrimination will often be solely in the hands or minds of the Respondents, and be difficult for complainants to elicit in any credible form.
Absence of evidence
82 When there is no evidence to support an inference that race was a ground, particularly when there is evidence giving rise to other, equally plausible inferences, an Applicant is left with nothing more than their belief that their race was a ground. In terms of legal proof, with which the Tribunal is necessarily concerned, such a belief is insufficient to establish unlawful discrimination….
…..Evidence supporting an inference of other grounds
87 There is extensive evidence in this matter of plausible, and at times probable, grounds other than Dr Dutt's race for less favourable treatment of Dr Dutt. The fact that there could be grounds other than race for the conduct does not preclude Dr Dutt's race being also a ground. But the existence of plausible and probable other grounds makes it extremely difficult for Dr Dutt to establish, on inference alone, that his race was more probably than not also a ground for the conduct.
Findings
40 The Tribunal has carefully considered the legal considerations guidance provided by the Tribunal in the decisions discussed above. The Tribunal has also carefully considered the evidence and submissions presented by the parties. The Tribunal makes the following findings in relation to the evidence. The evidence of the Applicant and Respondent as the occurrence of particular events was not in dispute. All agreed that there had been an allegation of bullying made against Ms Ashley by Ms Purcell, all agreed that Ms Ashley was requested to attend a training course and that this was a course for first-time managers, all agreed that Ms Ashley had indicated her view that the course was not suitable for her and that the Respondent had indicated to her that she was required to attend. All agreed that staff in the Cronulla store had made allegations in relation to the behaviour of Mr Pike and that staff had been interviewed by management in an investigation of the allegations. All agreed that at the meeting at head office on 26 August 2008 Ms Ashley had been advised that Mr Pike would be moved to another store and that she would be moved to Menai.
41 The parties’ evidence diverged in relation to the particulars of things said and done during certain meetings/events, and on the reason/s for the decision that Ms Ashley be moved to Menai. Ms Ashley states that one of the reasons was that it was punishment of her by the Respondent for reporting the allegations of sexual harassment. The Respondent submits that the decision was made for business reasons, namely that there was a pressing need to fill the store managers position at the Menai store and it was seen that Ms Ashley was the best fit for that position for various reasons.
42 The evidence of the Respondent and the Applicant diverged as to whether a position of training store manager existed and whether such a position was held by the Applicant. In relation to the training store manager position the Tribunal could not find, given the dispute in the evidence, that there was such a formal position. It was not established by the Applicant that there was such a position -- the evidence of the Respondent’s witnesses was that all store managers were required to train staff. The Respondents’ witnesses specifically denied that there was such a position, and consistently with this, that Ms Ashley held such a position. On the evidence, Ms Ashley did train the staff in her store. The Tribunal considers that the evidence supports a conclusion that Ms Ashley, as part of her store manager position, did regularly train staff. The Applicant in her affidavit of March 2010 appears to suggest that there was no formal agreement concluded with the Respondent in relation to a position of training store manager as at April 2008. The Tribunal could not be satisfied that Ms Ashley was removed by the Respondent from a formal position as training store manager. She was at all times, prior to the decision to move her to the Menai store, the store manager at Cronulla.
43 The issue of the training store managers position is not relevant to the matters to be proved by the Applicant in the current proceedings - as a demotion from such a role could not be considered a detriment in terms of the victimisation application because Ms Ashley’s evidence of such a demotion indicates that she asserts that this happened before the sexual harassment allegations (she says the demotion occurred in April 2008). However, the issue is relevant to an understanding of Ms Ashley's perception of events. It is clear from what the Applicant has said to various medical practitioners (as detailed above in these written Reasons for Decision) that she perceived, in events which occurred before the sexual harassment allegations, that she was being demoted or punished (the response to Ms Purcell’s bullying allegation, the training course attendance) . In the Tribunal's view Ms Ashley believed that she was being punished in these events which occurred in her employment before the sexual harassment allegations, and she also perceived that she was being punished by the Respondent’s decision to move her to Menai. In her evidence to the Tribunal she stated that she felt she was being punished and this is also what she told doctors/psychologists. Soon after the decision to move Ms Ashley to Menai was communicated to Ms Ashley, she did not come back to work, she says because of the impact of the workplace on her health.
44 The Tribunal had in evidence to the ‘application for employment’ form which contained a clause stating that the employee agreed that, at the company's discretion, the employee may be required to work, on a temporary or permanent placement basis, at other company locations that fall within 25 come radius of the first place of employment with the company. The Tribunal also had before it Ms Ashley's affidavit which referred to a contract of 2007 and the understanding between her and the Respondent. The Respondent relies also on the contract of employment signed by Ms Ashley in 2001 which stated that Lowes could move Ms Ashley to another store located within a 25km radius. Whilst there was some dispute during the hearing in relation to different measurements of the distance between the Cronulla store and the Menai store, it was clear that the evidence established that the distance was less than 25 km. When she was cross examined Ms Ashley was referred to the 2001 document and agreed that it appeared to give the Respondent the right to relocate her, but stated she had forgotten this term and noted it had been signed in 2001. Whether the contract provided for such a move may be relevant to the question of whether the move to Menai was a detriment. It is not relevant, in the Tribunal's view, to the issue of why the move occurred.
45 The Tribunal was not satisfied on the evidence of Ms Kraus she suffered a loss in hours worked, as a consistent pattern, after Ms Ashley's departure, as the evidence presented did not clearly indicate this (refer paragraph 25 above) nor was the Tribunal satisfied that a direction to Ms Kraus to cease the practice of ordering stock was to punish or demote her, as the evidence supports a conclusion that Lowes management did not consider it appropriate for a casual employee to order stock and so sought to end the practice. The Tribunal could not find that Ms Kraus suffered detriment after Ms Ashley’s departure, and no inferences could be drawn about the Respondent’s treatment of Ms Ashley, on the basis of the evidence of Ms Kraus.
46 In the hearing of this matter considerable time was spent by Counsel for the Applicant in cross-examination of the witnesses for the Respondent. They were questioned about each difference in their accounts in relation to specific conversations, from the account of those conversations as stated by Ms Ashley. It was suggested to the various witnesses for the Respondent that they had made their statements in concert. The Tribunal was not satisfied, considering the evidence overall, that the credit of the Respondent's witnesses was impugned. When Mr Heap was cross examined about making his statement, it was put to him that he had referred to the evidence of the other witnesses for the Respondent. Mr Heap gave evidence that in preparing his statement for the current proceedings he referred to previous material – being an interview which was conducted with him by the workers compensation insurer, and a statement prepared for workers compensation proceedings. It was not in dispute that such a statement had been prepared as Mr Heap was cross examined during these proceedings, by the Applicant’s legal representative, in relation to the former statement. The Tribunal found Mr Heap’s evidence on this point to be plausible – it was apparent during the current proceedings that there had been former proceedings between the parties. During cross-examination Mr Heap also admitted at times discussing issues with the other witnesses when new material was received from the Applicant or her legal representative, but denied preparing a statement in collaboration with the other witnesses. The Tribunal found it plausible that the Respondent’s witnesses would at times discuss the proceedings and Mr Heap’s admission on this point was credible in the Tribunal’s view. The Tribunal finds that it was not established on the evidence that the Respondent’s witnesses collaborated when making their statements and accordingly the Tribunal could not give a lesser weight to the evidence of the Respondent’s witnesses for such a reason. In relation to the evidence about various events, Mr Lamond, Mr Heap and Ms Frisina gave relatively consistent accounts. Further, the Tribunal found that Ms Frisina’s notes of her conversation on 16 August 2008 with Ms Kraus, which were put to Ms Kraus during the proceedings, and with which Ms Kraus agreed,were established by this evidence to be an accurate record. This evidence supports a conclusion that Ms Frisina’s notes were at least in relation to Ms Kraus an accurate recording of events, as was maintained by Ms Frisina during the proceedings. TheTribunal cannot draw a conclusion that Ms Frisina’s notes were an accurate version of all conversations, nor that there were a complete record, they are her working notes. However, the evidence of Ms Kraus that Ms Frisina’s notes were accurate in relation to the conversation between Ms Kraus and Ms Frisina, did, in the Tribunal's view, support a finding as to the reliability of Ms Frisina’s evidence, and provided no basis for finding that her evidence was not credible.
47 The Tribunal must be satisfied that one of the reasons for the decision of the Respondent to move Ms Ashley to Menai was her reporting of the complaints of sexual harassment. The Tribunal observes that the decision in Nicholls (Nicholls and Nicholls v Director General, Department of Education And Training (No 2) [2009] ADTAP 20) as set out above, indicates that in considering the issue of causation the Tribunal is to consider whether Ms Ashley’s reporting of the sexual harassment complaints was a reason for the decision to move her to Menai. As was stated in Nicholls:
- 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.
48 The case of the Applicant requires the Tribunal to consider whether the inference can be drawn from the primary facts that a reason that the Respondent made the decision to move Ms Ashley to the Menai store was the complaints of sexual harassment which the Applicant had reported to the Respondent. This is because there is not direct evidence of this fact: the only possibly direct evidence that the reporting of the sexual harassment allegations was a reason for the move is Ms Ashley’s account of the meeting of 26 August 2010 and her statement that she was told that the move was for “previous issues” including the “personal contact incidences”. That this was said was denied by other witnesses who were present at the meeting. Whilst those witnesses were subjected to considerable cross-examination by the Applicant’s lawyer, the Tribunal did not find a basis for rejecting the evidence of the Respondent’s witnesses on this point . The Respondent’s witnesses were subjected to considerable cross-examination aimed at impugning their credibility; it was put to the witnesses that they had prepared their statements in concert – the Tribunal was not satisfied that this was established on the evidence. It was put to them that they had used Ms Frisina’s notes to prepare their own statements – this was denied by the Respondent’s witnesses and the Tribunal has no basis, considering the evidence overall, to reject their evidence on this point. Given that Ms Ashley’s evidence conflicted with the evidence of other witnesses, and the given that Tribunal had no basis for rejecting the evidence of the other witnesses, then the Tribunal could not find Ms Ashley’s account, of the words said, to be proved. The Tribunal had no basis for accepting the evidence of Ms Ashley over the evidence of the Respondent’s witnesses, who denied that these words were used. Further, in this context, the Tribunal notes that the Applicant gave different version of the conversation in the letter to Mr Mueller and the affidavit evidence to the Tribunal, as detailed above in paragraph 11 of these Reasons for Decision. In her letter to Mr Mueller she did not state that Mr Heap specifically referred to the personal contact incidences, although she certainly stated her view that she was being punished for reason of these incidences, as well as other events. Given that the Tribunal could not find that the Applicant’s evidence- that Mr Heap had said that the move to Menai was due to previous issues including the personal contact incidences - was what occurred, then there was no direct evidence that a reason for the move was the Applicant's reporting of the sexual harassment complaints. The Tribunal must therefore consider the evidence overall, and the facts as established, and decide whether an inference can be drawn that a reason for the decision to move Ms Ashley to the Menai store was the sexual harassment complaints.
49 The Tribunal is required to consider whether it can be inferred from the facts that one of the reasons for the decision to move Ms Ashley to the Menai store was the complaints of sexual harassment reported to the Respondent's managers by Ms Ashley. The Tribunal is asked to infer that this was a reason given the timing of the communication by the Respondent to Ms Ashley of the decision that she was to move to Menai - being at the meeting of 26 August 2008 where the result of the investigation by the Respondent of the sexual harassment complaints was also discussed with Ms Ashley. As set out above in the section legal considerations, where the Tribunal is to make a finding of causation based on inferences drawn from primary facts, cases have identified the following considerations:
- (a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts;
(b) an inference must be reasonably drawn on the basis of the primary facts;
(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;
(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";
(e) the inference must be a logical one, and not supposition;
(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.
50 The present case requires the Tribunal to consider whether the Tribunal can properly draw an inference, from the evidence, that a reason for the decision to move Ms Ashley to Menai was the reporting of the complaints of sexual harassment. Given that the complaints and the move to Menai were discussed in the one meeting then the inference is logical and may be a probable connection. This case clearly raises for consideration whether the inference can be made having regard to whether there is a more probable and innocent explanation available on the evidence. The present case is not one where the Respondent did not provide an alternative explanation, (as was the situation in Correy’s case) - in the present case the Respondent maintains through its witnesses that there is such other explanations.
51 The Tribunal has no basis to reject the evidence of the Respondent’s witnesses that another employee had filled the Menai store manager’s position on a temporary basis, but had decided not to continue because of the travel time involved for him. The issue of filling the store manager’s position at Menai then became more pressing. Much was made in the hearing of the Respondent's contention that Ms Ashley was suitable for the Menai store because of her experience in the school wear. However no clear evidence was given to the Tribunal which would supply a basis for rejecting that evidence. Much time was spent during cross-examination of the Respondent’s witnesses on the issue of whether Lowes had a policy of moving store managers. The evidence of the Respondent’s witnesses was that the practice had not been actively pursued for some years previously, but that the human resources managers had adopted this policy during this period (2008). There is no written record of the policy but three management witnesses (Frisina, Heap and Lamond) gave evidence of the policy and practice. The evidence of the Respondent does indicate a change in management personnel in the period just prior to 2008 -- Mr Heap commenced employment at Lowes in January 2007 as national human resources manager; Ms Frisina commenced work at Lowes as a regional human resources manager in November 2007. By contrast Mr Lamond had worked for Lowes since approximately March 1989. Mr Lamond stated that he was aware that Lowes had reinstituted a process of transferring store managers between stores and that there were discussions to this effect within management from early 2008. Mr Lamond gave evidence that those discussions involved movements in his stores, which included the Cronulla store.
52 The evidence of the Respondent’s witnesses was to the effect that Ms Ashley was considered a very capable manager who had grown the business of the Cronulla store. It was said that the Menai store was potentially a growth store and Ms Ashley would be a good fit for this reason.
53 It was also the evidence of the Respondent’s witnesses that Ms Ashley was possessive of her store and did not like head office talking to staff in the absence of Ms Ashley (Ms Frisina); that she was quite difficult to deal with in some areas, for example she would ignore the required approach in favour of her own approach (Mr Lamond). Ms Ashley herself gave evidence which suggested that she was not comfortable with the Respondent’s human resources managers visiting the Cronulla store in her absence.
54 It was the position of the Respondent that for these reasons the Respondent’s witnesses (the managers, Mr Heap, Ms Frisina and Mr Lamond) considered that Ms Ashley may benefit from a move or change of location. The Respondent further states that given the policy of moving store managers, and given the pressing need to fill the Menai position, and given that Ms Ashley was a good manager who could grow the business of the Menai store, and because it was seen that she would benefit from a move, that these were the reasons for the decision to move to move her to Menai.
55 The Tribunal was not satisfied on the evidence, that the Respondent viewed the reporting of the sexual harassment complaints by Ms Ashley adversely so as to be able to be satisfied that the Respondent would for this reason act against the interests of Ms Ashley – the Respondent’s witnesses state that they consider it was part of Ms Ashley role as store manager to report the sexual harassment complaints, and in this context rely on the Lowes policy about this issue. They say they welcomed the report and it was not an issue. Further, the Respondent’s witnesses indicate that the result of the investigation was that no further action was to be taken by the complainants to pursue the complaints, although management also decided to move Mr Pike to another store. The Tribunal had no basis to reject the evidence of the Respondent’s witnesses that they did not have an adverse view of Ms Ashley for reporting the sexual harassment complaints.
56 The Tribunal finds on the evidence that there were some relationship difficulties presenting in 2008 between Ms Ashley and management of Lowes, in particular Ms Frisina, Mr Heap and Mr Lamond. It was perceived that Ms Ashley did not respond well to management oversight of her role and like to run things her own way. The Tribunal finds on the evidence presented that management perceived Ms Ashley to be an experienced and capable manager. After the bullying complaint by Ms Purcell management decided that Ms Ashley would benefit from training. Ms Ashley did not accept that this training was appropriate for her and expressed these views at the time. She was told that she was to attend the training despite her views. She viewed this as punishment. The Tribunal considers, on the evidence overall, that evidence about these difficulties in the relationship supports the evidence given by the Respondent’s witnesses that they considered a move may be beneficial for Ms Ashley and that this had been under consideration prior to the complaints of sexual harassment.
57 It is not in dispute between the parties that Ms Ashley was a capable and experienced manager. Nor is it said that any decision to move Ms Ashley was made for performance reasons. The Applicant's case is that she was victimised due to having brought the sexual harassment concerns of staff in her store to management attention. It is also her case that punishment of her by the Respondent occurred due to the complaint by Ms Purcell, which predates the sexual harassment complaints. The case of the Respondent is that the decision to move Ms Ashley to the Menai store was not due to any concerns held by management as to Ms Ashley’s reporting of the sexual harassment complaints, but was a management decision for the benefit of the company, unrelated to the complaints against Mr Pike. What does not assist the Respondent is that the outcome of management's investigation of the complaints against Mr Pike was discussed with Ms Ashley in the same meeting when Ms Ashley was advised that she would be moved to the Menai store. The Tribunal finds, for reasons detailed above, that there is an alternative explanation for the Respondent’s conduct which is plausible and consistent with an innocent explanation – that the decision was made for the reasons stated by the Respondent detailed above – which included that a move would benefit Ms Ashley, she was a good fit for the Menai store as an experienced manager, there was a pressing need as at August 2008 to fill the position, and the Respondent was instituting a policy of moving managers and a possible move for Ms Ashley was under discussion at this time. Finding that this explanation was available on the evidence, and was plausible as set out above, and was an available innocent explanation, then the Tribunal could not infer that a reason for the move to Menai was Ms Ashley’s reporting of the employees’ sexual harassment complaints.
58 In making this finding about inferences, on the evidence in the present case, the Tribunal has considered the difficulties such cases may present an Applicant as set out above in the “legal considerations” section – Dutts case. Indeed, Counsel for the Applicant referred the Tribunal to this decision in his submissions. However, in assessing the evidence in the present case the Tribunal has found, for reasons discussed, the Respondent’s explanation to be plausible on the evidence and is unable to infer from the evidence that a reason for the Respondent’s decision to relocate Ms Ashley to Menai was her reporting the sexual harassment complaints of junior staff at the Cronulla store.
59 There is also the issue of detriment. The Respondent says that Ms Ashley did not suffer any detriment -- the move to the Menai store was not a demotion as it was a job at the same level, being store manager. According to the Respondent the move involved challenges because the Menai store was a growth area. According to the Applicant, the move was a detriment because she was moved out of her local area and she did not wish to be moved. Further, she perceived it as a demotion (affidavit of March 2010). Further, she states that it was well known to the Respondent that she wished to stay at the Cronulla store, and that she had consistently indicated this over the years. Ms Ashley considered that the decision to move her was therefore to subject her to a detriment. The Tribunal is required to consider whether, objectively, the Applicant has established detriment – or a loss, damage or injury. The loss, damage or injury suffered by the Applicant must be something which a reasonable person would consider to be a detriment. The Applicant has given evidence that she suffered psychological injury and was unable to return to work. Given the Tribunal's findings in relation to causation – that the Tribunal is not satisfied that a reason for the move to the Menai store was the Applicant's reporting the sexual harassment allegations - then the Tribunal did not need to finally determine the issue of whether Ms Ashley suffered a detriment. As indicated above in these written reasons for decision a reasonable person may consider that a decision to move Ms Ashley from a store where she had been manager for a number of years, without consultation and without notice, to another store, may constitute a loss, damage or injury.
60 Given that the Tribunal’s finding on causation, the Tribunal could not be satisfied that the Applicant had established that she was victimised in terms of section 50 of the Anti-Discrimination Act 1977. As the Applicant has not established victimisation, then the Tribunal did not have to go on to consider the issue of damages/compensation.
61 Ms Ashley clearly perceives that she was not treated by the Respondent in a way that someone of her competence and experience, should have been treated. The issue for the Tribunal in the present case is to decide whether Ms Ashley was victimised, in terms of the Anti-Discrimination Act, because she reported sexual harassment complaints to management. The issue for the Tribunal in the present case is not whether Ms Ashley was treated with the respect which she felt she deserved as a capable, experienced, and dedicated manager, but rather whether she was victimised in terms of the applicable legislation. For reasons discussed above the Tribunal is not so satisfied. Accordingly the Tribunal made an order dismissing the application. Given the Tribunal's order dismissing the application the Tribunal did not have to decide the issue of compensation/damages.
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