Bree v Lupevo Pty Limited

[2003] NSWADT 47

CITATION:	Bree -v- Lupevo Pty Limited & Ors [2003] NSWADT 47
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Roxford Spencer Bree FIRST RESPONDENT Lupevo Pty Limited SECOND RESPONDENTS David Clark and Tonya Clark
FILE NUMBER:	001051
HEARING DATES:	23/07/2002
SUBMISSIONS CLOSED:	11/30/2002
DATE OF DECISION:	03/11/2003
BEFORE:	Ireland G - Judicial Member; Strickland J - Member; Edwards K - Member
APPLICATION:	Sex Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT D Fryatt, solicitor RESPONDENTS B Baker, solicitor
ORDERS:	1. The Respondent pay to the Applicant by way of compensation for the unlawful discrimination of the Applicant, a total amount by way of compensation in the sum of $16,956.00; 2. The Respondent pay to the Applicant the costs and expenses incurred by the Applicant in the making of his complaint and the holding of this inquiry into his complaint. The Tribunal notes that his order does not include the costs of the Applicant incurred in defending the Respondent's application under Section 111 of the Act heard before a different Tribunal. The Tribunal further directs that if the parties are unable to agree on the amount of the costs to be paid to the Applicant within a period of 28 days from the date of this decision that the Applicant seeks an assessment of those costs pursuant to the Legal Practitioners Act.

BACKGROUND
1 This inquiry by the Administrative Decisions Tribunal in its Equal Opportunity Division, relates to a complaint made by the Applicant to the Anti-Discrimination Board ("The Board") on 27th November 1996 in which he alleged that the Respondents had unlawfully discriminated against him on the ground of sex (under Section 24 and 25 of the Anti-Discrimination Act 1997 ("the Act")), and on the ground of victimisation (under Section 50 of the Act). After investigating the complaint and referring the two complaints to the Respondent on 25th November 1997 and subsequently unsuccessfully attempting a conciliation of the dispute, the President of the Board on 20th September 2002 referred the complaint to the Tribunal pursuant to Section 94(1) of the Act.

2 Before the Tribunal, the Applicant did not pursue the claim of victimisation. Accordingly, the Tribunal has not given consideration to this item of complaint.

3 On 11th May 2001, on the application of the Respondent, the Tribunal, differently constituted, considered an application to dismiss the complaints on the grounds that the Tribunal lacked jurisdiction to determine the matter as the Applicant had brought the same issue before the Australian Industrial Relations Commission and that Lupevo Pty Limited, which was then the only named Respondent, was not the employer of the Applicant. The Tribunal determined that on the evidence available to it, it was not possible to reach a conclusion as to the status of the proceedings in the Australian Industrial Relations Commission and that the Applicant’s claim under the Act and his claim to the Industrial Relations Commission concerned distinct and separate issues and was open to concurrent prosecution. The Tribunal held that there was no bar to the Tribunal hearing and determining the Applicant’s complaint.

4 In relation to the claim that Lupevo Pty Limited was not the employer of the Applicant, the Tribunal heard evidence concerning the ownership of the service station, known as "Ampol Nabiac" at which the Applicant was employed, and the Tribunal determined under Section 98 of the Act, that it was appropriate to join as parties to this inquiry Mr David Clark and Mrs Tonya Clark as additional Respondents. The Tribunal dismissed the Application by the Respondent under Section 111 of the Act. It made no order as to the costs of that Application.

RELEVANT PROVISIONS OF THE ANTI-DISCRIMINATION ACT
5 The inquiry before this Tribunal proceeded to consider the complaint of the Applicant that the Respondents had unlawfully discriminated against him under Sections 24(1)(a) and 25(2)(c) of the Act. The relevant provisions of the Act for the purposes of the inquiry are as follows:

"4A Act done because of unlawful discrimination and for other reasons:
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 a 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."
"24 What constitutes discrimination on the ground of sex
(1) A person ( the perpetrator) discriminates against another person ( the aggrieved person) on the ground of sex if, on the ground of the aggrieved person’s sex or the sex 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 the opposite sex or who does not have such a relative or associate of that sex,"
" 25 Discrimination against applicants and employees
(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:
(a) ...
(b) ...
(c) By dismissing the employee or subjecting the employee to any other detriment."

6 It was alleged that the Respondents subjected the Applicant to direct discrimination under Section 24(1)(a) of the Act by treating him less favourably than they would in the same or similar circumstances treat a female employee. It was further alleged that the discrimination was causally connected to the sex of the Applicant. Finally, it was alleged that the discrimination was unlawful as it resulted in the Respondents dismissing the Applicant from their employment.

THE CIRCUMSTANCES OF THE ALLEGED DISCRIMINATION
7 The Applicant was first employed at the Ampol Nabiac service station in April 1996. He was then employed by the previous owners of the service station. His duties related mainly to those of a driveway attendant.

8 Effective on 15th July 1996, the ownership of the Ampol Nabiac service station changed when Mr and Mrs Clark, the Second Respondents, purchased that business. Although there was some uncertainty at the time of the application before the Tribunal under Section 111 of the Act, as to the owners of the business after 15th July 1996, it was not disputed at the inquiry before this Tribunal that the owners at all relevant times were the Second Respondents, Mr and Mr Clark.

9 It was a term of the purchase of the business that the previous owner terminated the employment of the employees at the service station and those employees were instantaneously re-employed by the Second Respondents. Mr Clark explained the change to the employees, including the Applicant. The duties of the Applicant continued as before except that he was given the title of ‘Console Operator’. This change in title occurred to recognise the Applicant’s duties as including the operation of the console system instituted by the Second Respondents, in order to mechanise the operation of the petrol and diesel pumps on the driveway of the service station. As well as being responsible for the operation of the console and the petrol pumps, the Applicant was responsible for keeping the driveway and the shop of the service station in a clean and functional manner and to keep the shelves in the shop adequately stocked.

10 There is a difference in the evidence of the Applicant and the Respondents as to the terms under which the Respondents employed the Applicant from 15 July 1996. The Respondents maintained that the Applicant and the other employees at the service station were employed on a three month trial period. In addition, the Respondents alleged that on the expiry of the three month trial period of the Applicant, which would have expired on 15 October 1996, he was placed on a further trial period of one month. Mr Clark stated that he advised the Applicant of the three months trial appointment when he first interviewed him on or about 15 July 1996. The Applicant denies that he was advised of his appointment on a trial period and stated that he had no knowledge about the trial basis of this appointment until Mr Clark told him on 11 October 1996 of that arrangement.

11 A co-employee, Mr Peter Dawson, stated in evidence that he was not told by Mr Clark that he also was on a three month trial period, until he had a conversation with Mr Clark sometime in August 1996 and that up until that time Mr Dawson had no knowledge of a trial period of employment. Another co-employee, Mr O’Brien, stated that he had been told from the beginning, ie, in or about 15 July 1996 that he was employed on a three month trial period.

12 The Respondent raises the issue of the terms on which the Applicant was employed because under the terms of the award applicable to the Applicant, the Respondents maintain that a person employed on a trial period is subject to dismissal on one week’s notice.

13 Having regard to the whole of the evidence and having observed the witnesses in the presentation of their evidence to the Tribunal, it is the view of the Tribunal that the evidence of the Applicant on this aspect is to be preferred to the evidence of Mr Clark. The Tribunal is not satisfied that the Applicant was informed by Mr. Clark when he was employed that he was employed only on a trial basis. It was not until the conversation with Mr Clark on 11 October 1996 that Mr Clark handed to the Applicant a document headed ‘Job Description’. The ‘Job Description’ describes the Applicant’s job title as "sales, console, driveway attendance" and describes the position’s primary responsibilities and its ‘specific duties’. The specific duties described in the document are in the most general terms and give no specific instructions as to the day to day carrying out of the Applicant’s role. It is consistent, in the view of the Tribunal, that Mr Clark would have dealt with the formality of introducing a job description to the Applicant at the same time that he first advised the Applicant that he was on a trial period.

14 By 11 October 1996 the relationship between the Applicant and Mr Clark had deteriorated. No doubt this prompted Mr Clark to consider the formalities of the employment arrangements for the Applicant. Later when he was aware that the three months trial period had expired, he endeavoured to extend the trial period by a month. There would be some question, having regard to the terms of the award, that a trial period of more than three months can effectively apply to the provision of the award which limits the period for notice of dismissal to one week.

15 Whether or not the terms of the Applicant’s employment entitled the Respondents to dismiss him on one week’s notice, is not a relevant factor in considering the merits of the Applicant’s claim of unlawful discrimination. A large portion of the case for the Respondents dealt with allegations of the Applicant’s failure to properly carry out his duties and together with the suggestion that the Applicant could be dismissed on one week’s notice, were directed to demonstrate that the Respondents had adequate grounds for dismissing the Applicant from their employment on 25 October 1996.

16 The issue before the Tribunal is not an issue relating to the justification of the action taken by the Respondents to dismiss the Applicant. The issue before the Tribunal is whether the act of dismissal was done for two or more reasons and if one of the reasons consists of unlawful discrimination under the Act, the dismissal of the Applicant, for the purposes of the Act, is to be taken to be done for the reason that constitutes unlawful discrimination (Section 4A of the Act). The matter to be determined by the Tribunal is whether one of the reasons for the dismissal of the Applicant by the Respondents was the unfavourable treatment by the Respondents of the Applicant, on the ground of his sex, which, in the same or similar circumstances the Respondents would not have treated an employee who was a female.

17 The circumstances which the Applicant alleges constituted discrimination of him by the Respondents arises out of his wearing at all times during his employment an earring in his left ear. The Applicant alleges Mr Clark and a manager of the service station said it was not appropriate for the applicant to wear the earring and directed him not to wear it. The earring in question was demonstrated to the Tribunal. It was a small stud style earring which the Applicant wore on his left ear. It is a form of adornment which, the Tribunal has observed and about which it takes notice, is not uncommon to be worn by male persons in the modern day community. Although it was not alleged by the Respondents, but the Tribunal would observe that the earring would not constitute a safety hazard and would not physically interfere with the proper discharge of the duties of the Applicant in his role as a console operator at the service station.

18 No mention was made to the Applicant of the Respondent’s dislike of the wearing of the earring until an occasion on or about 9 August 1996 when Mr Troy Perram, a person appointed as manager of Ampol Nabiac, told the Applicant that his wearing of an earring was against the rules of his employment. At that time the wearing of the earring by the Applicant was not made an issue. The matter did not arise again until 10 October 1996 when the Applicant contacted the Ampol company in its Head Office in Sydney. He spoke to several employees of Ampol including its branch manager for the region. In his conversations with the Ampol employees, the Applicant inquired about his entitlement to over-time payments. He also raised the question whether they knew about the legalities of the wearing of an earring at the work place. The Applicant stated that he was advised by the Ampol employees that they were not aware as to whether the wearing of an earring was allowed.

19 Later that day Mr Clark phoned the Applicant at his home and told him that he would be having an in-depth chat with him when he arrived at work that afternoon. When the Applicant arrived at work, Mr Clark was not present. The Applicant spoke to Mr Clark’s mother, Mrs Alice Clark who called him into her office. The Applicant states that Mrs Clark asked him what his problems were and the Applicant told her about the payment of overtime. She advised him that she would see about it.

20 The Applicant stated that Mrs Alice Clark said to him:

"If your earring does not go, you will be shown the door."
21 The Applicant states that he responded by saying:
"The earring will stay."
And that he suggested to Mrs Clark:
"That she get with the 90s."
22 Mrs Clark denies that she made any statement to the Applicant concerning his earring. The Tribunal was not assisted by the evidence from Mrs Clark. She gave her evidence in the most general manner and had difficulties remembering details. The Tribunal would prefer the evidence of the Applicant to that of Mrs Alice Clark concerning the details of the conversation he had with Mrs Alice Clark on 10 October 1996. The Applicant also stated that in his conversation with Mrs Alice Clark on 10 October 1996 that Mrs Clark raised the issue of the three months trial period. The Applicant stated that it was the first occasion on which any mention was made to him of the trial period.

23 On the following day, 11 October 1996, Mr Clark handed the Applicant the job description document. The Applicant stated that after reading the document he approached Mr Clark, who asked him if he had any problems with any of it. The Applicant stated that he said:

"Yes I have a problem with this."
24 The Applicant said he then pointed to his earring. The Applicant stated that Mr Clark said:
"You are not allowed to wear it."
The Applicant said:
"Is it your policy that men cannot wear earrings at work, but is it alright for women to wear them in the kitchen? We are all in the same workplace."
The Applicant stated that the Respondent said:
"The kitchen is a completely different part and it is none of your concern. You are not allowed to set foot in the kitchen any more under any circumstances."
25 The Applicant stated that Mr Clark then told him that his hours of employment were to be reduced from 28 hours to 20 hours per week. Mr Clark asked the Applicant to hand over the keys for the premises and said:
"I don’t think you are capable of opening and closing the shifts."
26 The Applicant also said that Mr Clark told him that he would be limited to two cups of coffee per shift. The conversation between the Applicant and Mr Clark was acrimonious. Mr Clark denies a considerable part of the detail of the Applicant’s version of the conversation. Having observed the Applicant and Mr Clark in their presentation of evidence before the Tribunal, the Tribunal concludes that where there are material differences in the detail of versions of conversations or events between the evidence of the Applicant and the evidence of Mr Clark, the evidence of the Applicant should be preferred.

27 During the conversation between the Applicant and Mr Clark on 11 October 1996, Mr Clark handed to the Applicant a letter signed by Mr Clark. Leaving out the formal parts, the letter stated:

"The following evaluation has been made regarding your position with this company as console operator.
There is a noticeable disregard to personal presentation eg: item 7.1 in your job description.
Lack of concentration resulting in a safety risk to customers whilst dispensing products eg: item 6.1 in your job description. To date this has resulted in at least two drive-offs which have cost the company considerable loss of revenue.
I trust the above points of evaluation will be taken constructively."
28 The reference in the second paragraph of that letter to Item 7.1 in the job description document is a reference to the section which reads as follows:
"7. Personal Presentation:
7.1 Always ensure a high standard of personal presentation is maintained, (eg. Hair tidy – men short/women tied, no loose jewellery, earrings/studs etc)."
29 Although the document ‘Job Description’ that was handed to the Applicant on 11 October 1996 by Mr Clark is not addressed personally to the Applicant, it is headed ‘Job Title: Sales, Console, Drive Attendant’. In the view of the Tribunal, the document was directed to the Applicant personally and although paragraph 7.1 is in its terms neutral, as it is directed to the Applicant, the reference to no earrings/studs is a direction to the Applicant as a male. There was no evidence before the Tribunal to show if job descriptions were given to female employees of the Respondent or if job descriptions were given to female employees whether their job descriptions also contained a provision in the same terms as clause 7.1 in the job description given to the Applicant.

30 The evidence before the Tribunal shows that there were female employees of the Respondent. Evidence was given by the Applicant and Mr Dawson that at least one female (Coral) was employed as a cook and one female employee (Margaret) was employed behind the counter in the shop. The Applicant stated that on 21st October 1996 he observed Mrs Tonya Clark at work and that she wore earrings and that on the same day the cook, Coral, was wearing earrings. Mr Dawson stated:

"I observed that the ladies who were employed to work in the kitchen at the Ampol Nabiac were allowed to wear earrings."
31 The Applicant stated that on the 17 October 1996 Mr Clark handed him a further letter, the formal parts of which are as follows:
"Following our discussions on the 11/10/96 regarding your position as a console operator, your insubordination and generally negative response towards management of this company has been noted.

In future, comments by you towards management, such as "GUTLESS", and "WOULDN’T KNOW HOW TO RUN A SERVICE STATION" will not be tolerated. Your position as console operator was the topic of discussions, NOT how my time is spent operating two sites, and certainly NOT how I decide who is the Manager of this Service Station.
Your continued wearing of a "Stud" in your ear is in breach of the company policy and grooming standards explained to you by two members of management on 09/08/96 and provided to you in writing on 11/10/96. I therefore ask you to ensure you comply with all standards immediately. Failure by you to comply (without proper reason) may be regarded as insubordination and may result in termination of your employment."
32 The Applicant stated that when Mr Clark handed him the letter of 17 October 1996 that there was little conversation between he and Mr Clark.

33 The Applicant stated that on 21 October 1996 Mr Clark said to him:

"I have had three phone calls over the weekend from people that say that you have been discussing taking us to court for an unfair dismissal."
34 The Applicant said he replied:
"I have not spoken to anybody about an unfair dismissal. I have asked some of the other workers, if they were being charged for cups of coffee in excess of 3, that is all. Who rang you?"
35 The Applicant stated that Mr Clark said:
"I am not saying. My lawyer has three Affidavits from people you have discussed this with. Your lawyer should contact him."
36 The Applicant said that Mr Clark handed him a business card with his lawyer’s name and telephone number written on the card. The Applicant stated that he said:
"I am not taking it."
37 He said that Mr Clark then said to him:
"I want you to leave the premises and bring your uniform back tomorrow and pick up your pay."
38 The Applicant said this was about 3.30pm. The Applicant stated that he said to Mr Clark:
"Will I receive another letter telling me why I have been put off?"
And that Mr Clark responded:
"The reason will be stated on your separation certificate."
39 The Applicant said he was given a document called ‘Separation Certificate’ at a subsequent date and although the Applicant purported to attach a copy of the certificate to the statement he filed with the Tribunal, it was not annexed and the neither the Applicant nor the Respondent produced to the Tribunal a copy of the Separation Certificate. Subsequently the Applicant wrote to the Respondents seeking payment of his overtime. Ultimately he took proceedings before the Australian Industrial Relations Commission. Those proceedings were the subject of a settlement but the settlement has not been completed because the parties have been unable to agree on the terms of a Deed of Release. The Applicant accordingly has not been paid the amount of overtime which he claimed.

40 The Respondent in its response to the Applicant’s claim raises two issues. Firstly, the Respondent rejects the claim by the Applicant that his employment with the Respondent was terminated because he refused to remove an earring from his ear whilst at work. The Respondent alleges that the Applicant was employed on a trail basis of three months, followed by a further trial period of four weeks and as his trial period of employment under his award of employment had not expired, the Respondents had declined to confirm his employment after that period.

41 Secondly, and as an alternative, the Respondent pleads that the employment of the Applicant was properly terminated because the Applicant had breached his duties as a console operator at the service station in the following respects:

· The Applicant had given free cups of coffee to Police and local SES personnel, without authority from the Respondents.
· Contrary to instructions, the Applicant repeatedly entered the kitchen area of the service station and left his console position unattended.
· The Applicant failed to account for short-falls of money in his till and failed to reconcile his till at the end of his shift.
· The Respondent failed to report at least two ‘drive-offs’ which occurred during his shifts and whilst he was away from his console on at least one of those occasions.
· The Applicant falsely represented himself as a senior staff member of the service station, to the security company charged with the security of the service station, in order to obtain details of his times of opening and closing the service station.
· The Applicant was guilty of gross insubordination to his employer at the time of his second warning on 17th October 1996 when he was aggressive and irrational and swore both at Mr David Clark and Mrs Alice Clark.
· During ‘...breaks’ the Applicant was taking coffee from the kitchen without the consent of his employer.

42 The Applicant denied each of the alleged breaches of duty. Considerable evidence was given to the Tribunal concerning the alleged breaches of duty and the Applicant gave explanations in order to demonstrate to the Tribunal that the circumstances did not justify the Respondent’s dismissal of the Applicant. For the reasons to be given later, the Tribunal considers that it is not necessary for the Tribunal to examine in depth the allegations of breaches of duty.

FINDINGS OF THE TRIBUNAL
43 For the reasons mentioned earlier in this decision, if the Tribunal is satisfied that one of the reasons for the dismissal of the Applicant by the Respondent consists of unlawful discrimination under the Act, whether or not it is the dominant or substantial reason for the dismissal, for the purposes of the Act, the dismissal is deemed to arise out of the discriminatory conduct.

44 The Applicant alleges that one of the reasons for his dismissal was his persistence in wearing a stud earring in his ear when carrying out his duties as a console operator at the Respondent’s service station. Mr Clark denies that the wearing of the earring by the Applicant during his employment was a reason for his dismissal and insists that the reasons for dismissal were those set out earlier and were unrelated to the Applicant wearing an earring during his employment at the service station.

45 The Tribunal is satisfied that the evidence establishes that on 9th August 1996 Mr Perram, the then Manager of the service station pointed out to the Applicant that his wearing of an earring was in breach of the rules of his employment and that the warning letters given by Mr Clark to the Applicant on 11th October 1996 and 17th October 1996 were directly referable to the Applicant breaching the rules of the employer as set out in his job description and the ‘company policy and grooming standards explained to you by two members of management on 9 August 1996 and provided to you in writing on 11 October 1996’.

46 The subsequent dismissal of the Applicant three days after the last warning letter and ten days after the first warning letter, leads to an inevitable conclusion, in the view of the Tribunal, that one, if not the dominant reason for the Respondent dismissing the Applicant was the Applicant’s persistence in wearing the earring. The letters of 11 October and 17 October 1996 contain reference to other aspects of the Applicant’s conduct to which the Respondent took objection. None of those items of objection relate to the actual items of objection which in the evidence to the Tribunal and the submissions of the Respondent to the Tribunal, were emphasised as the reasons for the dismissal of the Applicant. For the reasons already given the Tribunal does not need to examine the justification of the Respondent’s findings of fault with the Applicant’s performance, once the Tribunal has reached the conclusion, which it does, that one of the reasons for the dismissal of the Applicant by the Respondent was the Respondent’s objection to the Applicant wearing an earring during his employment.

47 The issue of the discriminatory nature of the dismissal of the Applicant is not to be determined solely on the finding that the dismissal was referable to the Applicant wearing an earring during his employment. It is necessary to determine whether the application by the Respondent of its ‘personal presentation’ rules which prohibited the wearing of an earring by the Applicant was unfavourable treatment of the Applicant when in the same or similar circumstances the Respondent did not apply the same personal presentation rules to a female. In the view of the Tribunal the evidence demonstrates that the Respondent did not object or take any action to dismiss, females in its employ who wore earrings. The necessary comparison required by Section 24(1)(a) of the Act, is therefore established. The act of the Respondent in dismissing the Applicant because of his wearing of an earring during his employment was a discriminatory act as it was at least one of the reasons for his dismissal. Under Section 25(2)(e) of the Act the Respondent’s discriminatory conduct was unlawful.

48 It is still necessary to deal with the alternative proposition of the Respondent, that is, because the Applicant was employed only on a trial basis which had expired, his employment was not renewed on the expiry of the trial period and that he was not dismissed and in particular he was not dismissed because he wore an earring during employment. The Tribunal rejects this proposition. It has earlier dealt with the evidence about the engagement of the Applicant on a trial period basis and has not accepted that at the time of his appointment by the Respondent on 15 July 1996 that such a condition was attached to his employment. It was not open to the Respondent subsequently to endeavour to impose retrospectively conditions relating to the employment of the Applicant. The Tribunal accordingly rejects this proposition.

49 There is a possible further answer to the proposition of the Respondents. In some circumstances under the industrial relations legislation of New South Wales, on the transfer of a business, the termination of employment can be disregarded for the purposes of that legislation. As this issue was not addressed before the Tribunal it is not possible for the Tribunal to decide the matter but it may be available to the applicant to deny that the Respondents effectively altered his terms of employment after 16 July 1996 by converting the employment to a trial basis.

AWARD OF DAMAGES
50 Following from the finding of the Tribunal that the Respondent unlawfully discriminated against the Applicant, consideration needs be given to an award of compensation to the Applicant for the consequences of the unlawful act directed at him. The Applicant gave evidence that after his dismissal on 21 October 1996 he endeavoured constantly to find employment as a service station attendant at service stations in the region. He was unsuccessful in being placed at a service station until six months later when he was employed at a service station at Taree. The only time that he had any employment in the interim was for a period of two days when he had casual work at a Caltex Service Station at Coolongolook.

51 The Applicant claims that he is entitled to an award for loss of earnings for a period of six months, except for two days, at the rate of $400.00 per week, amounting in total to $10,400.00. In addition, he claims an amount of $800.00 for holiday pay and $560.00 for superannuation. There is in addition, the amount that he claimed as overtime amounting to $196.00 which for the reasons mentioned, has not been paid to him although the matter was the subject of an agreed settlement through the Australian Industrial Relations Commission. The total of these items of $11,956.00.

52 The Tribunal is satisfied that the Applicant has established that he made reasonable endeavours during the period of six months unemployment, to mitigate his loss by regularly attempting to find work. The Tribunal determines that the Applicant is entitled to the full amount that he claims for his loss of earnings during that period amounting to $11,956.00.

53 The Applicant also submits that an award of interest on that amount should be provided for the period from 21 October 1996 to the date of this decision. The power of the Tribunal to award compensation is contained in Section 113(1)(b)(i) of the Act. That sub-section provides for the Tribunal to order a Respondent to pay damages not exceeding $40,000.00, ‘by way of compensation for any loss or damage suffered by reason of the Respondent’s conduct’. The Act contains no specific power for the Tribunal to make an award by way of interest in addition to an award of compensation for loss or damage suffered. In these circumstances it is the view of the Tribunal that it does not have the authority to make an award for the payment of interest on amounts of compensation awarded under Section 113(1)(b)(i) of the Act.

54 In addition to an award for the loss of earnings of the Applicant, the Tribunal may award by way of compensation an amount to cover the damage suffered by the Applicant arising out of the hurt and humiliation suffered by the Applicant as a result of the Respondent’s conduct. The Tribunal considers that in the circumstances an appropriate amount to cover this item of general damage is an amount of $5,000.00.

55 Accordingly, the Tribunal orders that the Respondent pay to the Applicant by way of compensation for the unlawful discrimination of the Applicant, a total amount by way of compensation in the sum of $16,956.00.

AN APOLOGY
56 The Applicant seeks an order from the Tribunal that it directs the Respondent to publish an apology in a prominent position in the Manning Great Lakes Extra on a Thursday. The only authority of the Tribunal to direct a Respondent to publish an apology arises in Section 113(1)(b)(iiia) of the Act. That sub-section is limited to making a direction for publishing an apology in respect of a vilification complaint arising under Section 20(C) of the Act. As this complaint is not a complaint of vilification under that Section, the Tribunal has no authority to make an order for publication of an apology.

COSTS
57 The Respondent seeks an order from the Tribunal that the Respondent be directed to pay the costs of the Applicant both in relation to this inquiry and in respect to the unsuccessful application by the Respondent under Section 111 of the Act. The Tribunal does not have jurisdiction to make an order in respect to the costs in the Section 111 Application, as that application was dealt with by another Tribunal. That Tribunal did not make an order as to the costs of the application.

58 In relation to the application for an order for costs arising out of this inquiry, Section 114(1)(ii) of the Act provides that each party to the inquiry should pay its own costs except where the Tribunal is of the opinion that the circumstances justify it in making an order for the payment of costs. A factor to be taken into account in considering making an order for costs is that the amount ordered to be paid by way of damages to the Applicant will be eroded to the extent that the Applicant would have to pay his own costs. This alone is not a determining factor and it is necessary that there be other distinguishing features of the inquiry or the complaint that would justify the making of an order. The Applicant submitted that it would be justified to make an order as the Respondent at no time made an offer to settle this matter. In the view of the Tribunal, the settlement that was made in relation to the application before the Australia Industrial Relations Commission is not relevant to the matters for consideration by this Tribunal.

59 The Tribunal agrees with the proposition of the Applicant that having regard to the impact on the Applicant in loosing part of the compensation awarded if an order for costs is not made, and to the fact that the Respondent did not attempt to settle this complaint although opportunities were available over a long period of gestation of the inquiry and on the day of the inquiry the Tribunal made special reference to the parties to find a settlement of the dispute. In the view of the Tribunal it would be unjust to the Applicant if the Applicant was obliged to pay his legal costs in the circumstances where the Respondent had not made an approach for the settlement of the complaint with the consequence that the Applicant was obliged to expend money in pursuing his claim and establishing it to the satisfaction of the Tribunal through the holding of this inquiry. The Tribunal accordingly orders that the Respondent pay to the Applicant the costs and expenses incurred by the Applicant in the making of his complaint and the holding of this inquiry into this complaint. The Tribunal notes that this order does not include the costs of the Applicant incurred in defending the Respondent’s application under Section 111 of the Act heard before a different Tribunal. The Tribunal further directs that if the parties are unable to agree on the amount of the costs to be paid to the Applicant within a period of 28 days from the date of this decision that the Applicant seeks an assessment of those costs pursuant to the Legal Practitioners Act.