Carroll v Bridgestone Tg Australia Pty Ltd No. Dcaat-02-106

Carroll v Bridgestone TG Australia Pty Ltd
[2003] SADC 76
Judge Bright, Members Bachmann & Shetliffe
Equal Opportunity Tribunal

The applicant, Ms Carroll, worked on a production line for the respondent Bridgestone TG Australia Pty Ltd (Bridgestone). She was employed by a labour hire/employment company Allstaff Industrial (Allstaff) which had an arrangement with Bridgestone to supply contract workers to it. She was a contract worker for the purposes of the Equal Opportunity Act (the Act).
She worked as a trimmer. Her task was, principally, to use scissors, or a knife, to remove excess rubber from rubber mouldings used to seal doors and windows in motor cars. From time to time she performed other tasks, as required by Bridgestone, which involved the use of certain machinery.
She worked in a team of about half a dozen. Her immediate superior was a leading hand, Peter Touloumis, who reported, in turn, to a supervisor, Yana Kovacevic. The applicant commenced this work in June 1999. She says she had no trouble with the work and was physically perfectly capable of performing it. She says she had a good attendance record and enjoyed generally good health. She says that she had no trouble keeping up with the volume of work necessary for her team to reach its daily production quota. She believes that the technical quality of her work was satisfactory. Bridgestone does not dispute this.
It appears that, from time to time, Bridgestone selected workers to become permanent employees. Those from whom that selection would be made included contract workers, such as the applicant.
In about May 2000, it appears that Bridgestone decided to take on some permanent employees. Ms Carroll was interviewed for a position. She stated that she would like to become a permanent employee, despite her knowledge that, on becoming permanent, she would suffer some loss of pay, compared to what she received as a casual employee of Allstaff.
She was then required to have a medical examination by a nurse employed by Bridgestone. She says that no medical problem was revealed. However, the nurse did see a small scar on the applicant’s right wrist, the result of surgery to remove a ganglion in 1987. The applicant believes that that had been a minor, successfully treated problem, which had resolved with no residual disability. In particular, it had not caused her trouble in her work at Bridgestone.
It happens that the applicant had previously had a period of direct employment by Bridgestone from 30.5.88 to 8.9.89. The nurse knew the applicant from this period. She got out the other employment file. In it the removal of the ganglion was fully disclosed. Thus, in addition to the current period of about one year of work, Bridgestone had a record of an earlier period of about 17 months. It appears that her employment during that period had been satisfactory. She left only to have a child – not for any work-related problem.
The nurse referred the applicant for a further examination by a medical practitioner who advised Bridgestone. That examination occurred on 14.6.2000. There is no indication that anything previously unknown was found. No physical testing occurred.
On 30.6.2000, a Mr Mackley, of Allstaff, informed her that her services were no longer required by Bridgestone and that Allstaff were terminating her employment. She says that he gave as his reason the allegation that she had failed her medical examination, as the doctor had said she would need to be rotated hourly to vary her tasks to protect her wrist.
Bridgestone denies that it failed to make her permanent or terminated her contract position for any reason associated with disability in her wrist. It says that if Mr Mackley gave the reason asserted by the applicant, he was wrong and was without any authority to speak for Bridgestone in that regard.
Bridgestone asserts that it had two people under consideration for a permanent position, the applicant and another. These two had been working at Bridgestone for longer than any other potential appointees. It says it applied its normal selection criteria and, after due consideration, decided to appoint the other person. It denies any breach of the Act.
The notes apparently made by the nurse at the first examination record “Ganglion right wrist removed 6/87 re occurred 1989 approximately”. The doctor (on 14.6.2000) considered her “fit for the position applied for”, with the restriction: “hourly job rotation, avoid tasks with repetitive ® wrist flexion extension movements, preferably no heavy lifting.”
In her old medical file at Bridgestone, it is recorded that, on 3.6.88, she had “painful wrist since Tuesday morning, has been trimming with scissors and sanding with sand paper, holden seal strip, since starting employment on Monday 30.5.88”. On 7.6.88, she was noted to be “OK. Return To Normal Work”. On 13.12.88, she had evidently bumped the operation scar, it had become a little red and infected. It was recorded as “slight infection only – OK RTNW tomorrow”.
Thus there was a history of some minor problems during the first period of employment, followed by the advice of the doctor on 14.6.2000 that she needed to be rotated hourly. In the light of her evidence, and of the work she has done since leaving Bridgestone, it may not be true that she does need special consideration. But it is clear that, just before she was dismissed, that advice was given by a doctor to Bridgestone.
Most of what we have related is not in dispute. Differences turn on questions of credibility. It is to be noted that Ms Carroll does not assert that anyone at Bridgestone told her that she was to finish up because of her wrist. She says this came from Mr Mackley, but that, in the absence of any other credible explanation, the Tribunal should infer that the wrist was at least a substantial reason.
Bridgestone called evidence from a number of employees and from Mr Mackley.
Mr Stevens is, and has been for many years the Employee Relations Manager. He is responsible for decisions to hire and fire such employees as Ms Carroll. He is responsible for occupational health and safety and for employee relations generally.
In 1999-2000 Bridgestone had a contract to supply rubber door seals to Ford. It contracted with Allstaff to supply some of the workers to work on this contract. Ms Carroll was such a worker. From time to time, he said, Bridgestone would decide to take on permanent staff onto its own payroll. It had a policy of seeking employees who not only were capable and competent at their task, but who were also able to relate well in a team with other workers. He said that a lot of effort was put into the latter requirement
In mid-2000 Bridgestone decided to take on more permanent workers. Mr Stevens began by looking at those contract workers who had been at Bridgestone for the longest period. Ms Carroll was one of those. He asked Ms Kovacevic to arrange for him to interview Ms Carroll. She asked Mr Touloumis, the next in line to do that. He asked her to go to see Mr Stevens.
Ms Carroll told us that, when Mr Touloumis approached her about this, he was excited, shook her hand and congratulated her. He gave her to understand that a permanent job was assured. Mr Touloumis denied that. He said that he had no authority to say any such thing, nor did he do so. It was not unusual for him to ask workers to see Mr Stevens at times when it was thought workers might be taken on – sometimes they were, and at other times not. The fact of an interview was no guarantee and he knew it. There was nothing exciting to him about asking her to see Mr Stevens. The issue bears only on credit. On this point we prefer Mr Touloumis, whose evidence seems, in itself, more logical and likely.
Mr Stevens told Ms Carroll that full time staff were to be taken on, she was under consideration, as were others and that she would also need to undergo a medical examination. She said she would like to become permanent.
He was aware that Ms Carroll went to the nurse and then a doctor. He was advised of the result, which included the recommendation that Ms Carroll be rotated hourly. He says he ascertained that, in any event, Ms Carroll did not work at only one task. Regular rotation was inherent in the variety of tasks she performed. He says he did not see that as being a problem.
He knew Ms Carroll had worked for Bridgestone at an earlier period in 1988/9, after the original operation, though, apparently, with some minor problems. It had not been an issue then and was not one now. He had forgotten about the ganglion, but was reminded of it by the report from the nurse, referring back to it.
He spoke to Ms Kovacevic and to Mr Touloumis about Ms Carroll and her work generally. Neither had any adverse comment about the quantity or quality of her work. However, both had reservations about her ability to fit in with other workers in “the team”. At least at times she appeared, to some staff, somewhat arrogant and aggressive. There had been an incident between her and a Ms Lammin. Each accused the other of staring at her. There was an exchange of words. Each complained about the other. Ms Lammin went to Mr Stevens. He called a meeting with Ms Carroll and Ms Kovacevic to discuss Ms Lammin’s complaint. She was warned and asked to apologise. Having heard both Ms Carroll and Ms Lammin on this incident, it seems probable to us that Ms Lammin’s version is nearer the truth. Ms Carroll denies that that meeting took place. In itself it does not matter much, but we accept that Mr Stevens and Ms Kovacevic formed the belief that Ms Carroll could be “difficult” (our word).
Ms Kovacevic and Mr Touloumis also had the perception that Ms Carroll had one person in the team (Audrey Pollock) with whom she got on well and with whom she seemed to associate to the exclusion of the others. Ms Durakovic is a quality inspector, whose duties required her to keep an eye on the work of the team in which Ms Carroll worked. She had the same perception. She said that she had, at first, believed she had a normal relationship with Ms Carroll for about the first 3 or 4 months of Ms Carroll’s employment. Then there was a day when Ms Carroll passed without greeting or speaking to her. She asked her if anything was wrong and Ms Carroll said: “I don’t want to talk to you – don’t you ever talk to me.” Ms Durakovic did not and still does not know why this occurred. After it Ms Carroll did not speak to her again. Ms Durakovic said that others in the team told her that they felt intimated and that Ms Carroll would not speak to them. Ms Carroll denied any problems and claimed to get on well with the others. Whatever the rights or wrongs, there was clearly a general perception that Ms Carroll was “difficult”.
Mr Touloumis and Ms Kovacevic both had occasion to speak to Ms Carroll about her use of her mobile phone during working hours. Ms Carroll agreed that, at a time when her marriage was breaking up, she had accepted calls from her husband, but denied later abusing the ability to have a phone with her. Other workers also had phones.
Mr Touloumis said that it was her use of the phone in the last weeks of her employment which had troubled him, not that at the time of the break up. It appears Ms Carroll was in a new relationship by then. Again, whatever the exact details, we accept that Ms Kovacevic reported concern to Mr Stevens that Ms Carroll was inappropriately making and taking phone calls.
It was Mr Stevens recall that, in the last week or so of the employment Ms Carroll had a number of days off work, we infer without providing any medical certificate. Ms Carroll agrees that she had one day off, the day she was told she was no longer required. She denies any other days off. No records were produced. It was said that Bridgestone did not keep records relating to employees of Allstaff. Mr Touloumis thought there were several days.
Mr Stevens says that, after discussing Ms Carroll with Ms Kovacevic, he mulled over the matter for about 3 weeks. In the end, he says, he decided that Ms Carroll was not a person he wanted to put on permanent staff. He said his concern was that she would not fit into the general work force and work as part of a team. He decided not to employ her. He denies that his knowledge of her ganglion operation, years before, played any part.
He explained to us that Bridgestone does not want to use contract workers on a long term basis. It seeks to make permanent those who it decides are suitable. If a decision is made not to make a contract worker permanent, it will then indicate to the labour hire firm that it no longer wants that worker. It wishes only to employ workers with the potential to be made permanent – and they will be people with at least the potential for further promotion.
In accordance with this policy he determined that Ms Carroll would have to leave. That decision, he said, was predicated solely on the earlier decision not to make her permanent. Her ganglion played no separate part in the later decision to put her off.
It happened that Mr Stevens could not catch Ms Carroll to tell her – he had meetings, then she was away. He was about to take leave, so he phoned Mr Mackley of Allstaff, told him Ms Carroll was to go and asked him to inform her. It will be recalled that Ms Carroll told us that Mr Mackley did inform her and attributed it to her ganglion and the need to rotate her. She said that he said that that was what Mr Stevens had said.
Mr Stevens denied saying that to Mr Mackley. Mr Mackley was called. He agreed that Mr Stevens had not said that. He volunteered that he knew the ropes in dealing with the dismissal of employees, and that he knew Mr Stevens knew the same and that Mr Stevens, therefore, definitely would not have said that.
He said that he did not allege to Ms Carroll that Mr Stevens had said that. He said that Ms Carroll (who, obviously, knew that the nurse and doctor and others were aware of the old ganglion problem) raised the question whether it was the cause. He conceded that he discussed that possibility. He was about to volunteer more when we stopped him. We rather infer he was about to tell us that, even if it had been the cause, Mr Stevens would not have been silly enough to say so! We can readily understand that this may be the cynical view of Ms Carroll. However, her task is to establish that on the balance of probabilities, not merely to raise a suspicion.
Each of the three alleged bases for compensation is based on discrimination, contrary to the provisions of the Act. It is enough for her to prove that an improper, discriminatory, matter, though not the whole reason, was a substantial part of the reason for the impugned decision. The alleged discriminatory matter in this case is improper reliance on the existence of a disability, namely a problem in her wrist. In our view she has failed to prove that, and there is sufficient evidence before us to conclude that she was not offered the position and that she was subsequently dismissed on the basis of a range of other factors regarded as very important by the respondent which did not breach the Act.
We therefore dismiss the claim.

[2003] SADC 76

12 June 2003