Carr v Boree Aboriginal Corp
[2003] FMCA 408
•26 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARR v BOREE ABORIGINAL CORP & ORS | [2003] FMCA 408 |
| HUMAN RIGHTS – RACIAL DISCRIMINATION – DAMAGES – where the employer is vicariously liable for the behaviour of its employees – where the respondents did not comply with orders made by the court – where the applicant had liberty to have judgment entered against non-compliers – whether there was sufficient evidence of incitement – where the applicant also seeks an apology. |
Racial Discrimination Act 1975 (Cth), ss.9, 15, 17, 18A
Evans v NCA [2003] FMCA 375
| Applicant: | SHARON LYNN CARR |
| First Respondent: Second Respondent: Third Respondent: | BOREE ABORIGINAL CORPORATION GLEN BOYD KAREN STEWART |
| File No: | SZ 1107 of 2002 |
| Delivered on: | 26 September 2003 |
| Delivered at: | Sydney |
| Hearing date: | By written submissions filed by the applicant on 25 July 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Julie Soars |
| Solicitors for the Applicant: | Savage Lawyers |
ORDERS
The Court declares that the first respondent has unlawfully discriminated against the applicant in her employment with it and unlawfully dismissed the applicant contrary to the provisions of ss.9 and 15 of the Racial Discrimination Act 1975.
The Court orders:
(i)The first respondent pay to the applicant the sum of $7,500 by way of damages.
(ii)The first respondent pay to the applicant the sum of $11,848.61 for lost wages, holiday pay and unpaid overtime together with interest in the sum of $1,917.89 calculated in accordance with Schedule J to the NSW Supreme Court Rules.
(iii)The first respondent pays the applicant’s costs assessed in the sum of $11,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1107 of 2002
| SHARON LYNN CARR |
Applicant
And
| BOREE ABORIGINAL CORPORATION |
First Respondent
GLEN BOYD
Second Respondent
KAREN STEWART
Third Respondent
REASONS FOR JUDGMENT
These proceedings were commenced by the applicant who alleged that she had been discriminated against on the grounds of race contrary to ss.9 and 15 of the Racial Discrimination Act 1975 (Cth) (“the RDA”) by the action of the first, second and third respondents for which the first respondent was vicariously liable pursuant to s.18A of the RDA. The applicant had been employed by the first respondent from 1 July 1998 to 2 June 2000 under a community development employment program which had been set up for both indigenous and non-indigenous people. The applicant alleges that after a change of the board of the second respondent in early 2000, a number of incidents or acts of discrimination took place which culminated in her employment being terminated on 2 June 2000.
The applicant claims that as a result of the actions of the first respondent through its officers and the second and third respondents, she suffered loss and damage including special damage arising out of her inability to obtain employment from the time of her dismissal until February 2001.
The proceedings were commenced by way of application dated 28 June 2002. The matter was originally filed in the Federal Court but was transferred to the Federal Magistrates Court on 14 October 2002 by order of Branson J. The proceedings were served upon the respondents and an affidavit of service dated 26 July 2002 was filed. The respondents appeared by their solicitors Baldock Stacy & Niven. On
21 November 2002 orders for directions including orders relating to the hearing date in May 2003 were made. On 23 January 2003, Baldock Stacy & Niven filed a notice of ceasing to act. The matter was restored to me for further directions on 13 March 2003 when directions were made. The final order made on that date was in the following terms:
“In the event that the Respondents or any of them fail to comply with any of these orders the Applicant has leave to apply for a summary hearing in Sydney with consequential directions.”
On 10 June 2003, the previous directions not having been complied with, the matter was restored before me for further directions. On that date the second and third respondent appeared. I then made orders including an order to attend mediation. I also ordered that the respondents file an appearance and details of their contact addresses before 17 June 2003, that they file and serve a response together with any affidavits upon which they intended to rely on or before the 1 July 2003 and made an order that should the respondents or any of them fail to comply with orders 2, 3 or 6 (the order for mediation) the applicant shall have leave upon filing an affidavit of non-compliance to enter judgment against the non-compliers for damages to be assessed. I then set the matter down for hearing in Orange in 29 August 2003.
The respondents complied with order 2 by sending in a fax note with addresses written upon it but did not comply with the more substantive order 3. The applicant made her application for leave to enter judgment against all the respondents as non-compliers and that was granted. On
8 July 2003 I made consequential orders concerning the method by which damages were to be assessed. These included the filing by the applicant of written submissions as to quantum of damages, an opportunity for the respondents to make their submissions and the opportunity for either party to apply to the court for the assessment of damages to be heard in open court provided that such application was made no latter then 22 August 2003. No such application was made but the applicant did comply with the requirements to file and serve her submissions as to the quantum of damage.
Assessment of the quantum of damage
The applicant, a Ms S Lucas her supervisor and a Mr L Powell who was the manager of the Orange Lands Council at the time Ms Carr worked there, filed affidavits. I adopt with gratitude the summary of the evidence relied upon by the applicant contained in her submissions, which sets out the relevant matters that I have considered.
“6. Ms Carr had prior to the hearing on 10 June 2003 served the following Affidavits/statements on which she proposed to rely:
6.1 Ms Carr’s Affidavit sworn on 27 June 2002 which attaches her statement of facts in support of her complaint to HREOC;
6.2 A supporting statement of Ms Carr dated 11 December 2001 in support of her complaint to HREOC (part of Annexure “C” to the Application);
6.3 An Affidavit of Ms Sandra Lucas sworn on 6 June 2003 (which attaches and verifies her statement dated 26 March 2001 in support of Ms Carr’s complaint to HREOC (part of Annexure “C” to the Application));
6.4 An Affidavit of Mr Les Powell sworn on 6 June 2003 (which attaches and verifies his statement dated 27 March 2001 in support of Ms Carr’s complaint to HREOC (previously provided to HREOC and in accordance with HREOC’s usual practice, assumed to have been served on the Respondents);
6.5 A supporting statement of Ms Ann Clark dated 27 March 2001 in support of Ms Carr’s complaint to HREOC (previously provided to HREOC and in accordance with HREOC’s usual practice, assumed to have been served on the Respondents).
7. Ms Carr has also given discovery of documents relevant to the issues in dispute.
8.If the hearing fixed for 10 June 2003 had proceeded, the Applicant would have sought leave to supplement her evidence by oral evidence and documents from the Applicant’s discovery would have been tendered. In the light of order 5 of the Orders made on 8 July 2003, the additional matters and the documents to be tendered have been included in a further Affidavit of Ms Sharon Carr sworn on # July 2003 and filed herewith.
9. As BAC has not filed any Affidavits nor given discovery of documents as it was previously ordered by the Court to do so, it has only been possible to obtain publicly available information in relation to BAC’s status. It would appear that BAC is are incorporated under the Aboriginal Councils and Associations Act (the “ACA Act”).
10…
11. Ms Carr’s evidence establishes, in summary, the following:
11.1 Ms Carr was employed by BAC from 1 July 1998 to
2 June 2000 under a Community Development Employment Program (“CDEP”) which was set up for both Indigenous and non-Indigenous people and it was intended that the programme would contribute to reconciliation efforts. Approximately one-third of the participants in the CDEP were non-Indigenous Ms Carr was told on commencement that the CDEP was a program for both Indigenous and non-Indigenous people and that it was intended to contribute to reconciliation efforts. It is clear from Ms Carr’s original application for employment under the CDEP scheme dated 1 July 1998 (at page 1 of Exhibit “SC1” to the Affidavit of Sharon Carr sworn on # July 2003 (“Exhibit “SC1”))) that Ms Carr disclosed that she was non-Indigenous and that she was accepted into the CDEP scheme and employed by BAC as a non-Indigenous person;
11.2 Ms Carr worked without incident for BAC for about 18 months during which time she was well regarded for her work within BAC (a reference in relation to her work while at BAC is at page 7 of Exhibit “SC1”);
11.3 In early 2000 there was a change of the board of BAC and a number of incidents of discrimination took place;
11.4 For the period 13 March 2000 until 2 June 2000 Ms Carr worked under a secondment-type arrangement with the Orange Local Aboriginal Land Council (the “Orange Lands Council”) under a CDEP Work Agreement between BAC and the Orange Lands Council, although during this period her employer continued to be BAC. The documents relating to that secondment are at pages 8 to 11 of Exhibit “SC1”.
12. The particular acts of discrimination identified in the attached chronology can be summarised as being, on the ground of her race, that :
12.1 in or about July/August 1998, notwithstanding that she was the most qualified applicant for the job, she was passed over for promotion to the role of Supervisor of the office and Ms Karen Stewart was appointed in her place;
12.2 in about January 2000 she was requested by her then supervisor Ms Sandra Lucas to work overtime to clear a backlog of paperwork and she did so. Subsequently she was told by Ms Lucas that she would not be paid for this extra work because of pressure from various BAC board members on Ms Lucas not to pay additional funds to a non-Indigenous person and a general push to get rid of Ms Carr and all of the other “gubbas” out of BAC;
12.3 in early 2000 it was suggested to Ms Carr that she should train an Aboriginal person to take her position; and
12.4 Ms Carr’s employment was wrongfully terminated in early June 2000 when certain officers of BAC demanded that she return from her secondment with Orange Lands Council, cutting short her contract. When Ms Carr sought reasonable undertakings from BAC that she would not be subjected to any further racial discrimination and would be fairly treated, BAC did not reply to Ms Carr’s letter and did not acknowledge receiving it (notwithstanding that Ms Carr had her letter hand delivered by Mr Les Powell to Mr Cecil Towney of BAC’s address and Mr Powell has given evidence in his affidavit that he delivered it) and terminated her employment without further warning or responding to Ms Carr’s letter or discussing it with her (copies of this correspondence is at pages 12 to 15 of Exhibit “SC1”.
13. Ms Lucas was the coordinator at BAC from January 1999 until March 2000. Her evidence establishes, in summary, the following:
13.1 Directives were received from the BAC board (particularly Mr Glen Boyd, the Third Respondent) to remove non-Indigenous people from the CDEP, particularly supervisors; and
13.2 Ms Carr worked 80-120 hours of overtime which is recorded on the BAC computer and timesheets and which she had a legitimate expectation that she would be paid. Other participants were paid for this work and paid out for any balance of overtime owing when terminated, but Ms Carr was not.
14. Mr Powell was the manager of the Orange Lands Council (“OLC”) at the time Ms Carr worked there. His evidence establishes, in summary, the following:
14.1 Ms Carr was employed pursuant to an agreement between Ms Lucas and himself with the goal of uniting the OLC and BAC;
14.2 The goal of the new board of BAC was to get rid of all white people from supervisory roles;
14.3 BAC did not have sufficient people with appropriate skills to run the office at BAC and so they tried to get Ms Carr back;
14.4 At that time Ms Carr had a contract with OLC and did not want to return to BAC under the current conditions there, her attempts to negotiate with BAC were futile and she was dismissed;
14.5 Ms Carr was an excellent employee bringing accountability, professionalism and efficiency to the OLC. Mr Powell wanted Ms Carr to be his office manager and he would have offered her full time employment;
14.6 Mr Powell hand delivered Ms Carr’s letter dated
3 May 2000 to Mr Towney of BAC on 5 May 2000.
15. Ms Clark was a CDEP participant employed by BAC at the relevant time. Her evidence establishes, in summary, the following:
15.1 Ms Clark describes a BAC board meeting just before the termination of Ms Carr’s employment in which it was discussed that there were too many non-Indigenous people on the CDEP and the general consensus was to get rid of the whites;
15.2 During her time at BAC there was a general feeling that whites were not welcome; and
15.3 Karen Stewart was appointed to do Ms Carr’s hours at BAC.”
I am satisfied that the evidence establishes that the first respondent was the applicant’s employer at the relevant time and that the third respondent was an employee of the organisation. It is said that Mr Boyd, the second respondent, was a director of the first respondent and the evidence concerning his involvement in these issues is contained in a affidavit of Ms Sandra Lucas dated 6 June 2003 to which is annexed a statement which she made to HREOC and which she deposes to have been true. That statement says in relation to Mr Boyd:
“Glen Boyd, a board member at the time, said he wanted all non-indigenous people removed. Boyd said words to the effect ‘you have got about 30 non-indigenous people on the CDEP, that is too many. You need to get more indigenous people’. I replied, ‘we can’t put them off just because they are white’. Boyd then said words to the effect ‘you have got to do something about this’.
Shortly after, when I was out of town, the BAC board met and a decision was made to get rid of non-indigenous people. It is my opinion, that Boyd coerced other board members into supporting him. Boyd has made life difficult for a lot of people.”
I am not satisfied from this evidence, most of which is hearsay, that Mr Boyd could be said to have been directly involved in the dismissal of the applicant. I do not propose to grant the applicant any relief or make any orders including orders for costs against him.
I am satisfied that the first respondent is vicariously liable for the actions of the third respondent. Though I am not satisfied that the third respondent herself discriminated against the applicant. In the submissions which have been made it is suggested that the evidence of the steps which the second respondent took to incite the discriminatory acts which are complained of are dealt with in the chronology. I have considered the chronology and note that in July/August 1998 Ms Stewart, the third respondent was appointed supervisor and Ms Carr was passed over even though she was the best qualified person for the job. This does not indicate or give evidence of any incitement. On page 2 of the chronology the same phraseology is used in connection with a date in July/August 1998. I have the same comment to make. On page 3 of the chronology there is the following entry:
“Participants meeting – Ms Karen Stewart accused Ms Carr of not training Aboriginal people in the office and why none had been trained to do payroll and how come if they were Aboriginal people who knew how to do MYOB and trained to do Ms Carr’s position, why weren’t they in there. Ms Carr responded, ‘she did not control who was trained, she did her best to train others and she only had limited time available because she had a part time position’.”
I am not satisfied that this statement constitutes sufficient evidence of incitement within s.17 of the RDA. There is no other reference to Ms Stewart in the chronology. I do not propose to make any orders granting relief against Ms Stewart.
Although I am not satisfied that the second and third respondents were sufficiently involved in the acts of discrimination described to warrant orders being made against them, I am satisfied that the first respondent through its various servants and agents did discriminate against the applicant in her employment and did dismiss her for reasons which were to do with her race or non-Aboriginality. No other explanation has been put forward.
The applicant claims compensation in the sum of $8,258.72 for lost wages and holiday pay, $1,672.00 in unpaid overtime and $1,917.89 in interest up to judgment calculated at the rates contained in Schedule J to the NSW Supreme Court Rules making a total amount of compensation for loss of earnings in the sum of $11,848.61 up to
26 September 2003. The applicant also seeks general damages.
In the absence of any evidence to the contrary I accept the applicant’s submissions in connection with her special damage for loss of earnings and I would make an order against the first respondent that it pays her that sum. I would also give her the declaration which she sought that the first respondent had discriminated against her.
The applicant seeks a substantial sum by way of general damages.
I accept that the applicant has suffered hurt, humiliation and distress as a result of her treatment by the first respondent. She should be entitled to damages which reflect that. I think that in this case where no medical evidence is produced the appropriate figure is $7,500.00.
In my orders of 8 July 2003 I made an award of costs against the respondents which I assessed in the sum of $2,500.00. The applicant has set out in her submissions a claim for a much more substantial sum than this to be calculated in accordance with Part 21 rule 21.10 and Schedule 1 of the Federal Magistrates Court rules. She has provided in an affidavit dated 23 July 2003 and filed on 25 July 2003 a Schedule of costs assessed in accordance with that scale. This figure includes the sum of $4,090.00 for preparation for final hearing. In this case there was no evidence provided by the respondents and to my mind the preparation for final hearing would be significantly reduced. I am prepared to vacate order 2 of my Orders of 8 July 2003 and in its place to make an order that the first respondent pays the applicant’s costs which I assess in the sum of $11,000.00 including disbursements for the entirety of the proceedings up to this judgment.
The applicant has asked for an apology. In Evans v NCA [2003] FMCA 375 at [115] I said this in relation to apologies:
“The applicant has asked for an apology. At the end of the hearing I expressed a view which I have expressed previously in these matters. I do not believe there is much utility in forcing someone to apologise. An apology is intended to come from the heart. It cannot be forced out of a person. If the person does not wish to give it then it is valueless.”
I would hope that after reading these reasons for judgment and considering what occurred in this matter the first respondent would accept that the provisions of the RDA apply to all Australians and that breaching the Act is something which brings hurt, upset and humiliation to the person whose rights have been offended. I would trust that in this case the first respondent could apologise in writing to the applicant.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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